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2009 DIGILAW 195 (RAJ)

Gopi Lal v. Board of Revenue

2009-01-21

PREM SHANKAR ASOPA

body2009
JUDGMENT Hon'ble ASOPA, J.—By this writ petition, the petitioners have challenged the notice of reopening of the ceiling proceedings dated 24.10.1981 passed by the Dy. Secretary (Admn.) Government of Rajasthan (Anx.3), order of the Additional Collector, Baran dated 31.12.1985 (Anx.4) passed after reopening, orders dated 13.1.89 and 27.10.1989 (Anx.6 and Anx.7 respectively) passed by the Board of Revenue for Rajasthan, Ajmer in appeal as well as review petition. 2. Earlier, the writ petition was dismissed by the learned Single Judge on 4.2.2000 on the ground of disputed questions of fact against which the petitioners had filed DB Special Appeal (Writ) which was allowed by the Division Bench on 26.5.2008 and the matter was remitted back to the learned Single Judge with the request to decide the writ petition afresh after considering the partition decree as well as provisions of Sec. 30-D of the Old Ceiling Law. Thus, this writ petition has come up for hearing afresh before this Court. 3. The Division Bench considered the said provision of law and passed the following order on 26.5.2008 in the DB Civil Special Appeal No. 79/2000 filed by the petitioner against the judgment of the learned Single Judge dated 4.2.2000- "The grievance of the appellants in the instant intra court appeal is that learned Single Judge in the impugned order did not consider the partition decree dated September 26, 1966 passed by Assistant Collector Baran and dismissed the writ petition on the ground that it involved disputed questions of facts. Learned counsel for the appellants took us to the provisions of Section 30-D of the Old Ceiling Law, which reads thus — "30-D. Certain transfers not to be recognised for fixing ceiling area under Section 30-C. (1) For the purpose of determining the Ceiling area in relation to a person under Section 30C, any voluntary transfer effected by him on or after 25th day of February, 1958 otherwise than - (i) by way of partition, or (emphasis supplied) (ii) in favour of a person who was landless person before the said date and continued to be so till the date of transfer of the whole or a part of his holding shall be deemed to be a transfer calculated to defeat the provisions of this Chapter and shall not be recognised and taken into consideration and the burden of proving whether any such transfer falls under clause (i) or clause (ii) shall lie on the transfer (sic); Provided that if by way of any such transfer as is mentioned in clause (ii) land in excess of the ceiling area applicable to the transferee has been transferred to him such transfer to the extent of such excess shall not be recognised or taken into consideration for the purpose of this sub-section. Provided further that no such transfer as is mentioned in clause (ii) shall also be so taken into consideration or recognised if it has been made after 9th day of December, 1959". 3. Evidently learned Single Judge committed error of law in ignoring the partition decree as well as the provisions of Section 30-D of Old Ceiling Law. 4. For these reasons, we allow instant appeal and set aside the impugned order. We remit the matter back to learned Single Judge with the request to decide the writ petition afresh after considering the partition decree as well as the provisions of Section 30-D of Old Ceiling Law. The parties are directed to appear before the learned Single Judge on July 28, 2008. There shall be no order as to costs." 4. Before proceeding further to consider the legal issue, it would be worthwhile to mention certain facts with regard to the partition decree and the ultimate finding of the Board of Revenue. 5. The parties are directed to appear before the learned Single Judge on July 28, 2008. There shall be no order as to costs." 4. Before proceeding further to consider the legal issue, it would be worthwhile to mention certain facts with regard to the partition decree and the ultimate finding of the Board of Revenue. 5. A civil suit was filed by Gopi Lal son of Prahlad, adopted son of Bheru Lal, against Prahlad in the changed relation of uncle after his adoption by Bheru Lal after his death, Ram Karan son of Prahlad and Smt. Kesar wife of Prahlad inter alia with the averments that the ancestral land belongs to Nand Lal, and Bheru Lal and Prahlad were his two sons. Since Bheru Lal died intestate, therefore, he being adopted son of Bheru Lal, was entitled for half share of the entire ancestral land of Nand Lal. The Assistant Collector, Baran vide his judgment dated 26.9.1966 (Anx.lA) granted partition decree amongst the parties and made Smt. Kesar also entitled for one of the shares. The Board of Revenue has held that the Authorised Officer has not committed any error is not recognising the partition decree dated 31.12.1085 and further held that in the Khata of Prahlad there was land measuring 52.69 Standard Acres, Ram Karan being major son on 1.4.1966 was entitled for 1/3 share, therefore, the land measuring 17.57 Standard Acres is required to be separated from the Khata of Prahlad and the remaining land would be 35.12 Standard Acres out of which 5.12 Standard Acres is required to be acquired under the Old Ceiling law and further acquisition of 20.70 Standard Acres was ordered to be made from the Khata of Gopi Lal. 6. Submission of counsel for the petitioners before this Court was that the order of reopening as well as the aforesaid orders passed by the revenue authorities subsequently have either ignored or not correctly appreciated the partition decree dated 26.9.1966 passed in respect of the ancestral property held by Nand Lal i.e. grand father of the petitioner and the said decree is recognised under Section 30-D of the Old Ceiling Law. 7. 7. Counsel for the petitioners further submits that the partition is recognition of the share of the co-parcener and will not amount to transfer as would be evident from Sec. 30-D of the Old Ceiling Law itself whereby certain transfers not to be recognised for the purpose of determining the ceiling area otherwise than by way of partition have been provided but the said provision has been either ignored or not properly appreciated by the revenue authorities and further, in case the partition decree is considered then all the co-parceners are having less ceiling area than they are entitled to. Counsel for the petitioner has also submitted that the land of Nand Lal measuring in all 275 Bighas 15 Biswas, would equally divide between Gopi Lal adopted son of Bheru Lal on account of the death of Bheru Lal son of Nand Lal and Prahlad. 8. As regards the share of Smt. Kesar Bai widow of Prahlad, the submit-ssion of counsel for the petitioners is that she is also entitled to separate share as held by the Division Bench in Radhakishan vs. Gajanand (1956 RLW 205). 9. I have considered Sec. 30D of the Old Ceiling Law and the judgment of this Court in Radhakishan (supra) wherein it has been held that in case partition does take place between husband and his sons, then, the wife is entitled to receive equal share to that of a son and to hold and enjoy that share separately even from her husband. Paras 8 and 9 of the aforesaid judgment read as under: "8. The only other issue, which calls for decision, is issue No.10 relating to Mst. Kamladevi. She claims her share in the property in the event of partition between the father and sons. The law as to the right of division between her husband and her sons is summarised at page 412 in Principles of Hindu Law by D.F. Mulla, 11th Edn., paragraph 315. The learned author observes that 'a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.' This is then in brief the right of the wife and Mst. Kamladevi claims that she should be given her share equal to that of a son as the court is going to order partition. Her claim is resisted by Radhakishan on the ground that there is some custom which excludes her. She was not made a party in the beginning by the plaintiff. Later he was ordered by the court to make her a party, and he did so. After making her a party, a paragraph was added in the plaint denying her right in these words- "She has no share in the disputed property and she is not entitled to any share in any property in any manner as there is no custom or usage (Niyom) prevalent in Bikaner State of Rajputana, or in the community of the parties entitling her to get a share." 9. We are of opinion that the manner in which this plea was taken was all wrong. The parties are Hindus and are governed by the Hindu Law. We have already set out what are the rights of a Hindu wife when there is a division between her husband and her sons. If any Hindu wants that those rights should be cut down, it is for him to allege a definite custom cutting down those rights. It is not necessary for a Hindu wife, who claims partition in circumstances like the present, to prove that there is a custom entitling her to a share, because she is entitled to that share by the law. When evidence came to be given, it was not certain what was the custom on which the plaintiff was relying to exclude Mst. Kamla Devi. We asked learned counsel for the plaintiff in this case to state the custom on which he relied, and which derogated from the Hindu Law in order to exclude Mst. Kamla Devi. Learned counsel stated that in Ratangarh, or in the Bikaner State, or among the Agarwals there was a custom excluding a wife from a share in the family property on division between her husband and her sons. Learned counsel also urged that evidence had been produced by the plaintiff to prove this custom. Kamla Devi. Learned counsel stated that in Ratangarh, or in the Bikaner State, or among the Agarwals there was a custom excluding a wife from a share in the family property on division between her husband and her sons. Learned counsel also urged that evidence had been produced by the plaintiff to prove this custom. We have been taken through the evidence of ten witnesses in this connection, and we may say at once that we are quite unconvinced by that evidence, and are not prepared to hold that any such custom of exclusion has been proved." 10. Here in the instant case, the civil suit was not (sic) filed by the plaintiff Gopi Lal not in the capacity of son of Prahlad but the same was filed in the capacity of adopted son of Bheru Lal after his death against his uncle Prahlad and claimed equal share in the land held by his grand father Nand Lal who was father of Prahlad, therefore, the same cannot be said to be partition between the husband and son of a wife and the aforesaid judgment of this Court in Radhakishan (supra) is not applicable to the facts of the present case. However, after the death of Prahlad, Smt. Kesar Bai is not precluded to claim her share from the share received by Prahlad/Ram Karan as per the law of succession. But still, since the partition decree has not been recognised by the Authorised Officer and the Board of Revenue ignoring Sec. 30D of the Old Ceiling Law, therefore, the impugned orders deserve to be set aside and the case deserves to be remanded back to the Board of Revenue to recognise the partition decree as per Section 30D of the Old Ceiling Law. 11. In view of the wrong interpretation of the aforesaid judgment of this Court, the judgment of the Assistant Collector, Baran dated 31.12.1985 (Anx.4) as regards Smt. Kesar Bai, is declared per in curiam. 12. 11. In view of the wrong interpretation of the aforesaid judgment of this Court, the judgment of the Assistant Collector, Baran dated 31.12.1985 (Anx.4) as regards Smt. Kesar Bai, is declared per in curiam. 12. In the result, the writ petition is partly allowed, the impugned orders dated 13.1.1989 (Anx.6) and 27.10.1989 (Anx.7) passed by the Board of Revenue are quashed and set aside and the matter is remanded back to the Board of Revenue to consider the partition decree dated 26.9.1966 so far half share of Gopilal and Prahlad as on 1.4.1966 is concerned and further separate unit of Ramkaran as major son of Prahlad as on 1.4.1966. The Board of Revenue is further directed to decide the matter within a period of two months from the date of receipt of copy of this order.