TMI Blog1969 (7) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... e executed a will on 1-9-1963 under which the present petitioners Dadarao, sons of Kashiram and Janabai wife of Rambhau were made the legatees of this area. On the death of Parwatabai Janabai and Dadarao both contended that each of them held an area less than the ceiling area and no land which was originally held by Parwatabai was liable to be declared as surplus land. As regards Parwatabai the surplus land which could be delimited came to 38 acres and 4 gunthas in accordance with Section 21 of the Ceiling Act. The Deputy Collector rejected the contention of the petitioners and took the view that the devolution of the property on the petitioners by the will dated 1-9-1963 could not be taken into consideration and the surplus area will have to be determined on the basis that the original holder Parwatabai was still alive. On this view, the Deputy Collector delimited 38 acres 4 gunthas of land as detailed by him in his order dated 18th October 1965 in the last paragraph as surplus. 3. The petitioners challenged this order by way of appeal before the Maharashtra Revenue Tribunal. The Revenue Tribunal by its order dated 16th September 1966 took the view that the ceiling area had to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of the property which each of them held including the property which they inherited from Vasantrao. The Assistant Collector and Sub-Divisional Officer, it appears, under instructions of the Commissioner wanted to treat three returns as one joint return on behalf of the three petitioners jointly to which the petitioners did not submit. The petitioners submitted their contentions before the Assistant Collector contending that they could not be treated jointly as they had inherited separate shares from the deceased Vasantrao and the land which each of them got had to be treated separately for the purposes of the Ceiling Act. This contention was not accepted by the Assistant Collector. Taking into consideration the other members of the family, the Assistant Collector held that the land which could be retained would amount to 160 acres and the joint holders were ordered to file their retention statement under Section 16 of the Ceiling Act and it was further ordered that the remaining land should be declared as surplus. It may be mentioned that the petitioners had filed separate returns in pursuance of the order of the Assistant Collector dated 15-12-1966 which is in the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate the legal position, it would be necessary to take into consideration the object of the Ceiling Act and the various provisions thereof in order to find out whether the Ceiling Act seeks to deprive the legatees or the heirs of their land even if they do not hold land in excess of the ceiling area though the original holder hold surplus land. The object of the Ceiling Act is given in the preamble to the Act which reads as under: Whereas, for securing the distribution of agricultural land as best to subserve the common good, it is expedient in the public interest to impose a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition of land held in excess of the ceiling, and for the distribution thereof to landless and other persons; and for matters connected with the purposes aforesaid. It is for this purpose that the Ceiling Act has been enacted which came into force on the 26th day of January 1962 which is also 'the appointed day' referred to in the Ceiling Act. The main purpose of the: Ceiling Act, therefore, seems to be to distribute agricultural land amongst the landless and other persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Act for surplus land. How the surplus land is to be dealt with is given in Chapter VI of the Ceiling Act. By an explanation to Section 4 (1) it is provided that a person may hold exempted land to any extent. This, however, must be to the exclusion of any other laud which is not exempted. This will be clear from the provisions of Section 7 which apply to a case where a person holds both exempted and other land. If a person holds both exempted and other land, then in determining the surplus land the exempted land is also taken into consideration along with the other land and the surplus is then determined. 8a. Coming then to Chapter III which deals with restriction on alienations and acquisitions of land and consequences of contraventions, reference will be made to Section 8 which provides : 8. No person who, on or after the appointed day, holds laud in excess of the ceiling area, shall on or after that day transfer or partition any land until the land in excess of the ceiling is determined under the Act. Explanation: In this section transfer' means transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated Act should not dispose of the excess land with a view to avoid or defeat the objects of the Ceiling Act. It refers to transfers made after the 4th day of August 1959 but before the appointed day. It provides that if any person transfers or partitions after the 4th day of August 1959 but before the appointed day any land in anticipation of, or in order to avoid or defeat, the objects of this Act, then, in calculating the ceiling area which that person is entitled to hold, the area so transferred or partitioned shall be taken into consideration, and land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area for that holding, notwithstanding that the land remaining with him may not in fact be in excess of the ceiling area. It also applies to lands transferred or partitioned in contravention of the provisions of Section 8. In cases of transfers made between these two dates, the burden is placed on the landholder to show that the transfers are not made in anticipation of, or in order to avoid or defeat, the objects of the Ceiling Act. Sub-section (2) of Section 10 then provides : If any land is possessed on or after the appointed day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he surplus land with the holder in respect of which a declaration is to be made. We are not very much concerned in these cases with Sub-section (2) of Section 12. If however a person falling in the categories mentioned in Section 12 fails to file a return under Section 12, though he was liable to file a return, then the Collector can call upon him to show cause why the penalty should not be imposed upon him and if the Collector finds that the person has without reasonable cause failed to submit the return within time or has submitted a return which he knew or had reason to believe to be false, then he may impose the penalty provided in Section 13 (1) and may require such person to submit a true and correct return complete in all particulars within a period of one month from the date of the order. If, even after such requisition the person fails to comply with the order within the time granted, then as a penalty for failure to furnish a return or a true and correct return complete in all particulars, the right, title and interest in the land held by him in excess of the ceiling area is to be forfeited to the State Government on which it will vest in the Government. 10. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration only the surplus land of a person who is alive on the date of the declaration and the heirs or legatees are not affected in any way unless the land obtained by them on succession along with their other land, if any, makes their laud in excess of the ceiling area. 12. We shall now consider the effect of the various provisions of the Ceiling Act referred to above to ascertain therefrom the object or intention of the Legislature and to see how far the Ceiling Act affects the persons like the petitioners. 13. Reading the aforementioned provisions of the Ceiling Act, it appears to be the scheme of the Ceiling Act that a ceiling la to be determined with respect to a person which also includes a family and it creates a bar to a person holding land in excess of the ceiling area. With respect to a family the unit is taken as five members permitting it to hold land equal to one ceiling area. However, if the members of the family exceed five, then for each additional member an additional land of one-sixth of the ceiling area is permitted so however that the total land held by a family however big will not exceed two ceiling areas. This ceiling area is, however, to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 21, no transfer such as sale, gift, mortgage, exchange, lease etc., can be made of the land which is delimited as surplus land and if any transfer is made in respect of the land which is delimited as a surplus land after the notification, then such transfer or disposition will be invalid and of no effect. It should also be noticed that the vesting is further postponed till the final decision of the appeal, if any is filed against the declaration or any part thereof, or the final decision of the State Government if it calls for the record or proceedings of the declaration under Sub-section (2) of Section 45. 14. It will thus be seen that the holder of the land is not divested of the surplus land on 26-1-1962 but continues to be the owner of land till the final declaration is made by the Collector, or by the Revenue Tribunal, or the State Government, as the case may be and continues to be the owner and in possession and enjoyment of all his land till the date of vesting of the surplus land in the State Government. The said declaration has to be made on the basis of the return filed by a person which includes a family and that return has to be filed with respect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherit. If there is no such obligation, then evidently there can be no return in respect of the property held by a deceased holder on 26-1-1962 and the only return that may be filed will be by a living person who can be called upon to file a return only in respect of the property which he holds which may include the property which he already owned on 26-1-1962 and which he inherited after 26-1-1962, but before the filing of the return and it is with respect only to such return and on this basis that a declaration can be made under Section 21. It is true that if a person liable to file a return does not file a return within the time prescribed and if the Collector considers that such a person is liable to file a return being in possession of land in excess of the ceiling area, the Collector can levy a penalty on such person and can call upon that person to file the return within the prescribed time and if he fails to file such a return then he determines the ceiling area and the surplus land in the absence of the holder and the holder is further penalised by forfeiting the surplus land to the State Government, thus depriving the holder of the compensation which he would have normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person who was alive on 26-1-1962 and died subsequently before the declaration is made. In the absence of any such provision, it will be stretching the language of the Ceiling Act too far to include even such cases where the persons taking the property on the death of the holder have no hand in getting such property which comes to them because of the accident of their being the heirs or the legatees and in the latter case on account of the voluntary act of the testator to which the legatee is not a party. 16. It was contended on behalf of the State that the determination of the surplus land has to be made as on the appointed day on which the holder was living and the heirs or legatees will succeed only to the extent of the land which the holder would have been entitled to retain had he been alive on the date of determination and the surplus land must in any case vest in the State. Reliance is placed on the deeming provision of Sub-section (2) of Section 4 in which it is said that all land held by a person in excess of the ceiling area shall be deemed to be surplus land and it is contended that under this provision the date 26-1-62 is to be taken as a date with reference to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs or the legatees to file the return in respect of the property held by the deceased holder as on 26-1-1962 and provision could also have been made for etermining the surplus land on the basis of such return, deeming that person to be alive even at the date or the declaration though he is dead. In the absence of any such provision and looking to the purpose and intent of the Ceiling Act from the other provisions to which we have already referred, it does not appear to us that the surplus land was intended to be determined and declared as on the basis that the holder was alive on 26-1-1962 and continued to live on the date of the declaration. 17. The provisions of the Ceiling Act may be contrasted with the provisions of other Acts by which there has been expropriation of land. We may refer in this connection to the Madhya Pradesh Abolition of Proprietary Bights (Estates, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951) by which the lands and other things which were previously held by the erstwhile proprietors were expropriated and vested in the State. It may be seen that in this Act there is no reference to a person but it deals only with properties and certain lands of prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be taken for the purposes of determination of the ceiling area and the surplus land as on 26-1-1962. It will thus be seen that 26-1-1962 cannot be taken to be the date for determining the surplus area which vests in the heirs or the legatees after 26-1-1962, but before any declaration could be made. 18. Reference may be made to some provisions of the Estate Duty Act, 1953. Section 5 of the said Act is the charging section which provides for the levy of estate duty on the death of a person leaving property. The property as on the death of that person is the subject matter of the charge and the provision has been made specifically in Section 53 of fee Act for the liability of the legal representatives and other persons to whom such property passes. But for this provision, the legal representatives would not perhaps have been liable for payment of the estate duty on the property left by the deceased. A similar provision has been made in the Income-Tax Act, 1922 after the decision of this Court in Commr, of Income-Tax v. Ellis C. Reid, AIR 1931 Rom 333. The facts of this case were that a notice was issued to an assessee to make a return for Income-tax. After the receipt of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. If the legislature intends to assess the estate of a deceased person to tax charged on the deceased in his life-time, the legislature must provide proper machinery and not leave it to the Court to endeavour to extract the appropriate machinery out of the very unsuitable language of the statute. We are not concerned with the case which may arise on the death of a person after assessment but before payment. It is after this judgment that a specific provision came to be made in the Income-tax Act by adding Section 24B by which assessment of the year in which an assessee died could be made even after the death of the assessee and the property of the deceased in the hands of the legal representatives could be made liable for the assessment. This was because by Section 24B legal personality of a deceased assessee is extended for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year becomes assessable to income-tax is the relevant assessment year. While dealing with these provisions, the Supreme Court in Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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