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2014 DIGILAW 1870 (RAJ)

LRs of Sajjan Singh v. State of Rajasthan

2014-11-20

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioners against judgment of the Board of Revenue dated 29.06.1998 and that of Additional Commissioner (Ceiling), Pali dated 25.05.1995. 2. Facts in brief may be noticed thus : the petitioners are sons and legal representatives of late Shri Pratap Singh, ExJagirdar of Jagir Jhupelav, Tehsil Sojat, District Pali; The Jagir Jhupelav was resumed under the provisions of Rajasthan Land Reforms and Resumption of Jagir Act, 1952 w.e.f. 01.07.1958; it is claimed that the total area of land in the name of late Shri Pratap Singh was 1108 Bigha and 11 Biswa and, out of the said land, land in Khasra No.586/1 was transferred by Shri Pratap Singh in his capacity as Jagirdar in favour of his six sons and one grand-son in the year 1956; the Sub Divisional Officer by order dated 02.06.1956 accepted the transfer and the same was mutated on 15.04.1966; it is further claimed that late Shri Pratap Singh surrendered some land to the Tehsildar, which was accepted by him. 3. The ceiling proceedings were commenced against late Shri Pratap Singh, under Chapter III-B of the Rajasthan Tenancy Act, 1955 (old law), wherein, late Shri Pratap Singh submitted his return on 30.09.1966 and it is claimed that under mistaken advice indicated that the land was transferred to his sons and grand-son on 15.04.1966 (the date of mutation instead when it was actually transferred in the year 1956); however, the return filed by late Shri Pratap Singh was accepted by the Sub Divisional Officer, Sojat and by order dated 19.05.1971 the ceiling proceedings were dropped. 4. After coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (New Act), the ceiling case was reopened under Section 15(2) of the New Act and the Additional Collector (Ceiling) by order dated 25.05.1995 rejected the transfers made in late Shri Pratap Singh's sons and grand son's favour and came to the conclusion that the land ad measuring 1340 Bigha 13 Biswa was surplus and ordered for taking of possession of the surplus land. 5. Feeling aggrieved, the petitioners approached Board of Revenue, who by its order dated 29.06.1998 came to the conclusion that the family settlement was rightly not recognised and, consequently, dismissed the appeal. 6. 5. Feeling aggrieved, the petitioners approached Board of Revenue, who by its order dated 29.06.1998 came to the conclusion that the family settlement was rightly not recognised and, consequently, dismissed the appeal. 6. It is submitted by learned counsel for the petitioners that both the authorities below failed to consider the facts in objective manner whereby the land standing in the name of sons and grand son of late Shri Pratap Singh has not been recognised by the two authorities below; it is submitted that rejection of the family settlement has been on totally non-existent ground, inasmuch as, post the resumption of Jagir, the property held by late Shri Pratap Singh was joint family property and he was entitled to execute family settlement in this regard. 7. Besides the above submissions, it was submitted that in view of the provisions of Rule 17(4) of the Rajasthan Tenancy (Fixation of Ceiling on Land) Government Rules, 1963, even if, the family settlement was not recognised, the authorities below were required to determine the share based on the said provision, which deals with the land held by Hindu undivided family and, as such, the judgments impugned passed by the authorities below deserve to be quashed and set aside. 8. Reliance was placed on Gopal Singh v. State of Rajasthan & Ors. : 1983 RLR 915. 9. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners; it was submitted that a bare look at the judgments passed by both the authorities below reveals that the family settlement was not liable to be recognised and the natural sequence was that the land continued to be part of late Shri Pratap Singh's ownership and was in excess of the ceiling limit and, therefore, the judgments passed by authorities below do not call for any interference. 10. I have considered the rival submissions made by learned counsel for the parties. 11. 10. I have considered the rival submissions made by learned counsel for the parties. 11. From the facts it is not in dispute that late Shri Pratap Singh was Ex-Jagirdar of Jagir Jhupelav and his legal representatives had filed return under the Old Ceiling law, which was accepted by Sub Divisional Officer, Sojat by order dated 19.05.1971, wherein it was noticed that the Ex-Jagirdar was not in possession of excess land after coming into force of the New Act, the proceedings were reopened and the documents of partition and mutation were filed on behalf of the parties; however, thereafter their counsel did not appear and the Additional Collector (Ceiling) noticed that on 25.02.1958 late Shri Pratap Singh was holding 1795 Bigha 13 Biswa land and executed family settlement on 15.04.1966, whereas, on the cut off date i.e. 01.04.1966, the entire land was in his name and as the sons were not co-tenants, the partition was against law and, consequently, could not be recognised and allowing 60 standard acres of land found 1340 Bigha 13 Biswa land as excess. 12. The finding recorded by Additional Collector (Ceiling), Pali reads as under:- " izfroknh us 15-4-1966 dks vius leLr Hkwfe dk caVokM+k vius iq= lTtu flag] lksgu flag] 'kEHkwflag] xaxkflag] y{e.k flag] tloar flag] ukjk;.k flag ds e/; djuk cryk;kA ftls vklkst lqnh 12 lEor~ 2022 dks fy[kk x;kA izfroknh izrkiflag dk nsgkUr 1970 esa gksuk cryk;k gS Li"V gS 1-4-1966 dks izfroknh thfor FksA rFkk leLr Hkwfe muds uke ls FkhA fdlh Hkh Hkwfe dk caVokM+k lg&dk'rdkjksa ds e/; gh fd;k tk ldrkA izfroknh ds iq= lg&dk'rdkj ugha FksA vius firk dh e`R;q ds i'pkr~ gh lg&dk'rdkj gks ldrs FksA Li"V gS 1-4-1966 dks mDr Hkwfe izfroknh dks nhA izfroknh }kjk vius iq=ksa ds e/; Hkwfe dk caVokM+k fof/k fo:) gksus ds dkj.k ugha ekuk tk ldrkA bl caVokM+s dk mn~ns'; lhfyax dkuwu dks foQy djuk gSA " 13. When the said issue was questioned by the petitioners by way of appeal before the Board of Revenue and several pleas were raised regarding non-recognition of the family settlement/partition and in the alternative a specific plea regarding Rule 17(4) of the Rules was also raised by the petitioners, however, the Board of Revenue by its impugned judgment dated 29.06.1998 merely noticed that the family settlement was dated 15.04.1966 and the same was not according to law and, therefore, the lower court did not rightly recognised it. 14. The finding recorded by the Board of Revenue reads as under:- "This family settlement is dated 'Asoj Sudi' 12 Svt. 2022 and mutation affected on 15.04.1966. This family settlement is not in according to law. Therefore according to my view the lower court has rightly not recognised it." 15. A look at the judgment impugned shows that the Board of Revenue did not deal with the submissions made regarding date of family settlement as well as implication of Rule 17(4) of the Rules. 16. This Court in the case of Gopal Singh (supra) while dealing with a case of Ex-Jagirdar observed as under:- "8. The principal argument, which was advanced by the learned counsel for the petitioner before this Court was that according to Rule 17 (2) read with Rule 17 (14) of the Ceiling Rules the share of three major sons of Gopalsingh, who were not considered to be dependent upon him by the Sub-Divisional Officer, should not have been notionally separated and the total land standing in the name of Gopalsingh petitioner and his wife should have been reduced to the extent of the shares which the three major sons were entitled to have in the joint family property. It was argued by the learned counsel for the petitioner that the land in question was ancestral property and the sons of the petitioner had a right to obtain a share therein by birth and while determining the ceiling area applicable to Gopalsingh, the share of his three major sons, who were not dependent upon him, should have been excluded. Sub-rules (1), (3) and (4) of Rule 17, which are relevant for the purpose of deciding the question raised by the learned counsel for the petitioner, are as under:- "17. Sub-rules (1), (3) and (4) of Rule 17, which are relevant for the purpose of deciding the question raised by the learned counsel for the petitioner, are as under:- "17. (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 a family, shall be deemed to be held by the family. (3) 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. (4) The share of a member of a family or of an individual person in the land held by a Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individual (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 acquired 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." 9. It is not disputed before me that Gopalsingh is an ex-Jagirdar and the lands which have been entered in his name as khatedar tenant were allotted to him as khudkasht land and khatedari rights accrued to him in respect thereof on account of the provisions of Sections 9 and 10 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and Section 13 of the Raiasthan Tenancy Act. Section 10 of the Jagir Resumption Act provides that from the date of resumption of any jagir land, any khudkasht land of a Jagirdar should be deemed to be held by the Jagirdar as a khatedar tenant thereof. Section 10 of the Jagir Resumption Act provides that from the date of resumption of any jagir land, any khudkasht land of a Jagirdar should be deemed to be held by the Jagirdar as a khatedar tenant thereof. An identical provision has been made in Section 13 of the Rajasthan Tenancy Act which provides that on the resumption or abolition of an estate, the estate-holder holding khudkasht land shall become a khatedar tenant thereof and shall be entitled to all rights conferred upon and be subject to all the liabilities imposed on a khatedar tenant by the Act. Thus, although after the resumption of the Jagir, the petitioner Gopalsingh became a khatedar tenant in respect of the khudkasht lands standing in his name, yet the said lands were not held by Gopalsingh in his individual capacity but they were held by him as a Karta of the Hindu undivided family. 10. In the State of U. P. v. Raj Kumar Rukmini Raman Brahma ( AIR 1971 SC 1687 ) , it was held by their Lordships of the Supreme Court that an estate which is impartible by custom cannot be said to be the separate and exclusive Property of the holder of the estate. If the holder has got the estate as an ancestral estate and succeeded to it by the rule of primogeniture, it would form part of the joint estate of the Hindu undivided family. Their Lordships observed as under in the aforesaid case:- "It must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the un-divided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienation's by the head of the family except for necessity (3) the right of maintenance and (4) the right of survivor-ship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari (1887-188) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC). The right of maintenance and the right of survivor-ship, however still remain and it is by reference to these rights that the property, though impartible has, in the eye of law to be regarded as joint family property." 11. Thus, if the impartible character of the property was lost on account of the resumption of jagir, then the property would still bear the character of a joint family property. A smilar matter was considered by a division bench of this Court in Thakur Gopalsingh of Badnor v. Commissioner of Wealth Tax, Rajasthan, Jaipur (1973 WLN 14) , wherein a question about the nature and character of the compensation received by the ex-Jagirdar upon the abolition and resumption of his Jagir arose for consideration. Their Lordships held that the Jagir was hereditary and ancestral property and the junior members of the family had acquired their rights and interest by birth, although only the right of succession by survivor-ship could be exercised, on account of the impartible nature of the jagir. But as the jagir was not the absolute property of the jagirdar, it was a joint family property governed by the rule of primogeniture which belonged to the Hindu undivided family of the Jagirdar and when the jagir was resumed the compensation awarded in respect of such joint family property was not separate property of the ex-Jagirdar but was joint family property, because the character of the compensation could not be different from that of the jagir itself, in lieu of resumption of which the same was paid. The khudkasht land, which the ex-Jagirdar was allowed to retain on the resumption of his jagir and in which he acquired khatedari rights under Section 13 of the Rajasthan Tenancy Act, on the abolition and resumption of Jagir, must bear the same character as that of the jagir, namely that the said land was joint family property in the hands of the ex-Jagirdar. The Board of Revenue observed that there was nothing on the record to show that the petitioner's family was a joint Hindu family. I am unable to agree with the view taken by the learned member of the Board of Revenue in this respect. The very fact that the Jagir was an ancestral property and the jagirdar was holding the jagir as property and the Hindu undivided family, with a rider that the members of the family could not get a partition effected because of the fact that by custom the jagir property was impartible in nature and was governed by the rule of primogeniture. However. since the jagir was resumed, the impartible character of the property was lost and the joint family property became subject to partition. So the co-sharers could exercise other rights as coparcener's. In the joint family property, the khudkasht land held by the jagirdar must, therefore, be held by him on behalf of and for the benefit of the joint Hindu family, of which he was the Karta and although the ex-Jagirdar became the khatedar tenant in respect of such khudkasht land, yet the khatedari rights were held by him on behalf of the joint Hindu family of which he was the karta. The junior members of the family were entitled to seek partition of the joint family property, namely the khudkasht land held in the name of Gopalsingh. 17. From the facts and law noticed hereinbefore, it is apparent that while the Additional Collector (Ceiling) refused to recognise the family settlement/partition on account of his finding that late Shri Pratap Singh's sons were not his co-tenants and, therefore, no partition could took place and the Board of Revenue refused to recognise the same by taking the date as 15.04.1966 being after the cut off date, however, both the authorities below failed to consider the implication of the fact that the land in question after resumption of Jagir belonged to the Hindu undivided family of the Jagirdar (late Shri Pratap Singh) in view of the law laid down by this Court in the case of Gopal Singh (supra). 18. 18. The implication of the character of the property in the hands of late Shri Pratap Singh would essentially be two fold as either the finding regarding land in question being not available for partition as the sons were not co-tenants as recorded by the Additional Collector would be incorrect and/or the petitioners would be entitled to benefit of Rule 17(4) of the Rules. 19. However, as noticed above, the said aspects in the light of nature of property have not at all been considered by the two authorities below and, therefore, the matter needs to be remanded back to the Board of Revenue to reconsider the appeal of the petitioners in light of the observations made hereinbefore and re-decide the same.Consequently, this writ petition is partly allowed. The judgment dated 29.06.1998 passed by the Board of Revenue (Annexure-7) is set aside. The appeal is restored back to the Board of Revenue for re-hearing the same in light of the observations made hereinbefore, as expeditiously as possible. The record of the lower authorities summoned earlier be returned back immediately. No order as to costs.Petition partly allowed. *******