TMI Blog2019 (8) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... warkar, Anoop Kandari, Nishant Sharma and Deepa Kulkarni, Advs. JUDGMENT Sanjay Kishan Kaul, J. 1. The socialistic agenda of the nascently formed Indian State with large landless poor population was given an impetus inter alia by a number of State legislations for re-distribution of agricultural land, by putting a ceiling limit on the same, and then allotting it to the landless poor. We are concerned here with the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961 (hereinafter referred to as the 'said Act'). The said Act also went through many amendments top fine tune different aspects, most importantly the aspect of plugging loopholes, whereby owners having land in excess of the ceiling limit would endeavour to somehow re-distribute it among the family to bring it within the ceiling limit, or at least, to reduce the excess land. The objective of the said Act can well be deciphered from its preamble, which reads as under: An Act to impose a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling; to provide that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that holding, notwithstanding that the land remaining with him or with the family unit may not in fact be in excess of the ceiling area. If by reason of such transfer, the holding of a person, or as the case may be, of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land; and out of the land so transferred and in possession of the transferee [unless such land is liable to forfeiture under the provisions of Sub-section (3)], land to the extent of such deficiency shall, subject to Rules made in that behalf, also be deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact be in excess of the ceiling area. Explanation: For the purposes of Clause (a) 'transfer' has the same meaning as in Section 8. All transfers made after the 26th day of September, 1970 but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. Explanation: For the purposes of this S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading of the aforesaid provisions would show that a fiction is sought to be created (whereby a transfer made from a prior date, of 26.9.1970, is sought to be nullified, other than by way of a bona fide transaction) by the Amendment Act of 1972, by providing for the cut-off date of 26.9.1970 qua any transactions or transfers, transactions after which date being deemed to be transfers in anticipation, or in order to defeat the object of the Amendment Act of 1972. It may also be noticed that it is only by the Amendment Act of 1975 that the commencement date was specified as 2.10.1975. Thus, while normally all the relevant provisions of the legislation, having come into force from 2.10.1975, the provisions would have applied from that date, i.e. 2.10.1975, a legal fiction was created to apply the provisions retrospectively, from 26.9.1970. It does appear from the submissions that as the legislation appears to have been debated and been in contemplation for some time, the apprehension of transactions during this window of time, in anticipation of the amendments, was taken care of by the aforesaid provisions. 4. The factual matrix has to be examined in the context of the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Act by Vithaldas, which Section falls in Chapter IV, dealing with 'surplus land'. In the course of the assessment proceedings regarding surplus land, the holdings of the entire family were taken into consideration, as in terms of Section 2(11) of the said Act, the family would include an HUF, which is joint in estate, or possession, or residence. A family unit, Under Section 11-A of the said Act, for definition, has referred to Section 4, defining 'land held by a family unit'. In terms of order dated 19.11.1976, 60 acres and 27 gunthas of land of late Vithaldas was declared surplus. This order was assailed before the Maharashtra Revenue Tribunal, Bombay Bench, Nagpur, which dismissed the appeal on 16.2.1977, resulting in proceedings being filed by Vithaldas, before the Bombay High Court, Nagpur Bench. In terms of order dated 2.3.1982, learned Single Judge of the Nagpur Bench of the Bombay High Court remitted the matter back to the SLDT for fresh inquiry, on the ground of lack of adequate opportunity provided to Vithaldas and others to present their case. 9. On remand, a fresh order was passed by the SDO, Chikhali District, Buldana on 7.5.1984. Various a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings, but they are not relevant for the present appeal. The High Court agreed with the finding that the daughters, not having a share in the property, a Partition Deed could not have conferred any interest on them, albeit it was before the cut-off date of 26.9.1970. 13. An intra-court appeal was preferred, which was dismissed vide impugned order dated 27.11.2007. The Division Bench agreed with the findings that the partition effected vide Partition Deed dated 31.1.1970 was unnatural as it alienated properties to minor daughters, and that a female child could not get a share in the ancestral property, even though it was effected before the relevant date of 26.9.1970. Once again, as reflected in the records, the factum of cultivation of land by late Vithaldas was taken into account. The attainment of the age of majority by the elder two daughters, before the commencement date, 2.10.1975, was also ignored as irrelevant. 14. The Appellants before the Division Bench also sought to raise the issue of the two elder daughters not being arrayed as parties in the cross-objections, even though their existing rights were being affected. Further, it was argued that none of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Record of Rights also shows a similar position. 17. The picture which emerges from the documents produced is that in pursuance of the Partition Deed, which was obviously produced, both for the Record of Rights and the Crop Register, the names of the two elder daughters were entered though through their guardian, late Jagannath (the grandfather), as they were minors at the relevant time, while the corresponding endorsement on their attaining majority, before the commencement date 2.10.1975 was seemingly not made. 18. We heard Mr. Krishnan Venugopal, learned senior Counsel for the Appellants and Mr. N.R. Katneshwarkar, Advocate on behalf of the Respondent-State. Deemed Fiction: 19. The legislation in question is a beneficial piece of legislation and, indeed, must be given the widest amplitude, the object being to distribute land among the landless. The preamble quoted aforesaid sets forth the object of the said Act. But, it is equally true that in giving wider amplitude to such legislation, it cannot be that the Court interprets the words of the statute beyond its plain reading reflecting the intent of the legislation. A preamble has its limitations inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptember, 1970, should be considered or ignored in calculating the ceiling area as provided by Sub-section (1) of Section 10 or Section 11; Thus, once again, it is clearly stated that the lands transferred between the period 26.9.1970 and the commencement date (2.10.1975) is what is to be ignored in calculating the ceiling area. 22. The effect of the aforesaid provision is that any land, even if it is obtained by partition or other transfer, after the date of 26.9.1970 would be included for the purposes of calculation of surplus land, as land of the person who so transferred the same. 23. The legislature has also taken another caution. The second Explanation to Sub-section (1) of Section 10 also provides that documents evidencing such transfer even before 26.9.1970 would not be exempted if they are not registered on or before that date, or even if they are registered after that date, they are not presented for registration on or before that date. The requirement is for the transfer document to be, both executed and presented for registration before the cut-off date. Thus, the possibility of evading the land ceiling limits by creating documents on a back date and subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can arise only when the express language of the Section laying down the conditions precedent for raising of such a fiction is complied with by the mortgagee-in-possession concerned seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature. 26. This judgment has found support in a subsequent judgment of this Court in Raj Kumar Johri v. State of M.P. (2002) 3 SCC 732. Thus, the aforesaid being the manner of interpreting a provision for deeming fiction, the relevant dates provided, of 26.9.1970 and 2.10.1975, giving a window of five years for the State to take action and prevent any dubious transaction during this period of time, cannot be expanded to an unlimited prior period of time. 27. This Court, in Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292 while dealing with the very statute has opined that the cut-off date would be sacrosanct. The factual contours dealt with partition before the cut-off date, as also sale of land. Once the cut-off date is provided, it was observed that they fell completely outside the ambit of the provisions of the Act and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time. 31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated. 32. It has been observed that a father can make a gift within reasonable limits of ancestral immovable property to his daughter as part of his moral obligatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he occasion of her marriage, they are still morally bound to do so, at any rate when the circumstances of the case make it reasonably necessary.... ...Another Division Bench of the Madras High Court considered the question in Sundaramya v. Seethamma [(1911) 21 MLJ 695, 699] and declared the validity of a gift of 8 acres of ancestral land by a Hindu father to his daughter after marriage when the family was possessed of 200 acres of land. The marriage took place about forty years before the gift. There was no evidence that the father then had any intention to give any property to the daughter. The legal position was thus expounded by the learned Judges. Munro and Sankran Nair, JJ.: The father or the widow is not bound to give any property. There may be no legal but only a moral obligation. It is also true that in the case before us the father did not make any gift and discharge that moral obligation at the time of the marriage. But it is difficult to see why the moral obligation does not sustain a gift because it was not made to the daughter at the time of marriage but only some time later. The moral obligation of the Plaintiff's father continued in force till it was di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the quantitative limits of such a gift as that would depend on the facts of each case and it can only be decided by courts, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances.... In the aforesaid case, a discussion took place in respect of a Gift Deed executed with respect to a daughter. The acceptability of gifting of a reasonable part of the ancestral property, in favour of daughters, for marriage purposes, was held to be valid, and in accordance with Mitakshara law. There is a discussion of even the Manusmriti to conclude that, though it may not reflect the current legal position, but consistently, the Hindu texts not only sanction the giving of properties to daughters at the time of partition, or at the time of marriage, but even provisions can be made in advance, for the same. 34. The judicial pronouncement in Annamalai Ammal v. Sundarathammal and Ors. AIR 1953 Mad 404 may also be noticed, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law. 38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained Under Section 4, which reads as under: Section 4-Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation: A family unit means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mad 1174 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313, on a proper understanding of a transaction, the document was construed as a composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi and Ors. (1996) 9 SCC 388, while deciding whether the document in question was a will or a settlement, it was held that the nomenclature of the document is not conclusive, and instead its substance would be determinative. In a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the facade of the document to decipher the true nature of the transaction. 40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition-cum-gift deed, it would make no difference as the requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Agricultural Lands (Ceiling on Holdings) Act, 1961 hereinafter referred to as the Act. 48. Late Shri Vithaldas was married and had three daughters and a son. He purported to enter into a partition which was registered on 31.01.1970. At the heart of the controversy in this case, is the allotment of shares to his two elder daughters, namely, Smt. Shakuntala and Smt. Durga Devi. They are hereinafter referred to as the elder daughters. They are Appellant 1 and 2 in this Court. Both of them were minors at the time of partition, and the question is whether 31 acres and 29 guntas of land allotted to them is to be excluded from the account of the family unit of Shri Vithaldas in determining the surplus land under the Act. Appellants 3 and 4 before this Court are the son and the third daughter of Late Shri Vithaldas. 49. Vithaldas filed a return Under Section 12 of the Act on 02.10.1975. The authority passed an order declaring the total holdings of Vithaldas to be 118 acres and 17 guntas. 60 acres and 27 guntas were held to be surplus land and in excess of the ceiling area. The Tribunal dismissed the appeal filed by Vithaldas as also cross objections by the State. By order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minors. iii. The female child although gets the right to inherit the succession opens for her only on the death of the parents. Thus the partition deed is un-natural and against the sequence of Hindu Act of Maintenance. These are the national Acts passed by Parliament. The unnaturally therefore needs to be done away with. The entire area with the Appellants, wife and Appellants are to be clubbed together as per the definition of the family unit. 52. In the reply filed by Shri Vithaldas and his wife to the cross-objections, in so far as it is related to the partition, it was stated as follows: The Appellants further denied the contention raised by the Respondent State so far as the partition or allotment of share to the daughters is concerned. The nomenclature is immaterial one. The factum of possession and cultivation is material one. The learned Sub Divisional Officer has rightly excluded the Survey Nos. 13 and 14 of Babulgaon from counting in the holding and the said finding need not any interference from this Tribunal. The contention raised in this ground are denied. 53. The Tribunal dismissed the appeal filed by the Appellants and allowed the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition of the ancestral and joint family property and therefore, land to the extent of her share should be excluded in terms of Section 3(3)(i) read with Section 4 of the Act. This point has merely to be stated to be rejected. Hindu Law is clear what only certain females such as wife, widow, widow mother, grand mother only are entitled to share on partition. Unmarried daughters major or minor, married or unmarried does not belongs to that category of females. 57. Reliance was also placed on judgment in Writ Petition No. 2791 of 1976 by the Nagpur Bench of the Bombay High Court. Therein it was found that the High Court had ignored a partition with the declarant's mother, by registered partition deed dated 09.01.1970. 58. The Appellants-elder daughters, who were allowed shares in partition, were found to be minors. Shankuntala, whose date of birth was 03.11.1955 was 14 years of age and Durga Devi, whose date of birth is 29.08.1957, was 12 years old, when the partition was effected on 31.01.1970. 59. Vithaldas continued to be the owner as title had not passed to the two daughters by a legally valid instrument. 60. As far as the actual possession was concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, respectively, in the alleged partition deed dated 31-1-1970. In my view, the above finding is correct, or not any rate cannot be said to be perverse on the basis of the evidence on record in the instant case. It, therefore, deserves to be upheld. Though the appeal was filed before the Division Bench, by Shri Vithaldas (Appellant No. 1) and his wife, during the pendency of the appeal Vithaldas passed away. Thereafter, the impugned judgment would show Respondents 4 to 7 as LRs of Appellant No. 1. 65. Before the Division Bench, attention of the judgment in this regard in Uttar Chand (Dead) by Lrs. v. State of Maharashtra and Anr. AIR 1980 SC 806, was invited. The said judgment will be referred to later on. The State pointed out that the partition involved in the said case decided by this Court was among persons who had an existing interest in the property. The fact that wife of Vithaldas who had a right in the partition was not given a share, was taken note of. The argument of the State was that the partition deed did not effect any transfer in favour of the elder daughters, and therefore, there was no question of recognizing any transfer effected prior to 26.09.1970. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evi and it was not open for the State to question the rights created in favour of Respondent Nos. 6 and 7 by a document dated 31-1-1970. 12. This fallacious contention was rightly repelled by the learned AGP by pointing out that the State was as much an interested party as the family members, because operation of the provisions of the Act entitled the State to secure the surplus land for the purpose of their distribution. If the argument of the learned Advocate for the Appellants were to be accepted, fictitious transfer, in which the transferor or the transferee had no dispute, would have taken out the entire surplus land out of the provisions of the Act. Therefore, this contention of the learned Advocate for the Appellants has to be rejected. 67. As regards the flaw in entertaining the cross objection filed by the State, it came to be dealt with by the High Court on the footing that Under Section 33 of the Act, the Code of Civil Procedure, 1908 was to be followed. It was found that the observation of the Tribunal about State not being required to pay court fee, was not proper but non-payment of court fee was not a matter over which a litigant could take advantage. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cross-objection, first, because of absence of subsisting interest in the properties, and secondly, because Appellants could be trusted to take care of their daughters' interests from their own property, rather than resorting to what may be proverbially described as Robbing Peter to pay Paul . Lastly, claim for exclusion of field survey No. 106 of Sawangi, contending that the gift dated 20-1-1955 was not actually received, while at the same time taking a diametrically opposite stand about document dated 30-1-1970, amounts to blowing hot and cold in the same breath. And on this basis the appeal came to be dismissed. CONTENTION OF THE APPELLANTS 69. The arguments addressed by the learned senior Counsel for the Appellants run thus: There was a partition entered into and registered on 31.01.1970. Thereunder, certain lands have been set apart to the daughters of Shri Vithaldas. Shri Vithaldas had three daughters and one son besides his wife. All the three daughters were minors as on 31.01.1970. The commencement day is 02.10.1975. The elder daughters turned major prior to the appointed day. Therefore, having regard to the meaning of the words family unit , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he further contention raised by the learned senior Counsel for the Appellants is that the Tribunal acted illegally in allowing the cross objection of the Respondent-State and thereafter holding that the partition deed dated 31.01.1970 is to be ignored. 71. The learned Counsel for the Appellants has contended that a legal fiction should not be extended beyond the purpose for which it was created. In this regard, Appellants relied on the following case law- Bihar Immunity Company Ltd. v. State of Bihar and Ors. (1955) 2 SCR 603; Commissioner of Income-Tax v. Bombay City I, Bombay v. Amarchand N. Shroff by his heirs and legal Representatives AIR 1963 SC 1448; Commissioner of Income Tax, Kanpur v. Mother India Refrigeration Industries (P) Ltd. (1985) 4 SCC 1; Bijender Singh v. State of Haryana and Anr. (2005) 3 SCC 685. 72. It is also sought to be contended that the purpose of the legal fiction is to be ascertained from the plain language of the provisions that creates it (See Commissioner of Income-Tax, Delhi v. S. Teja Singh AIR 1959 SC 352. 73. Irrespective of how beneficial the object of the Statute may be, the deeming fiction cannot be extended beyond the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of the ceiling area, as determined in the manner hereinafter provided. Explanation.-A person may hold exempted land to any extent. (2) Subject to the provisions of this Act, all land held by a person in excess of the ceiling area, shall be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land. Section 5 provided for the ceiling area Chapter III in which Sections 8 and 9 11 fell, is to be noticed. 8. No person who, on or after the appointed day, holds land 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) made inter-vivos ; and partition means any division of land by act of parties made inter-vivos. The appointed day, it has been noticed was the 26th day of January, 1962. 9. No person shall, at any time on or after the appointed day, acquire by transfer or partition any land, if he already has land in excess of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 2(21) owner , in relation to any land, includes the person holding the land as occupant, 4[or superior holder as defined in the Code], or as lessee of Government, a mortgagee-in-possession, and a person holding land for his maintenance; 81. Section 3(1) contains the actual prohibition in the matter of holding land and it reads as follows: 3(1) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided. Explanation.-A person or family unit may hold exempted land to any extent. 82. Section 3(3) may also shed light: (3) Where any land- (a) is held by a family of which a person is a member, (b) is held in or operated by a cooperative society of which a person is a member, (c) is held by a person jointly with others, (d) is held by a person as a partner in a firm and the holding of such person or of a family unit of which such person is a member[including the extent of share of such person, if any, in the land answering to any of the descriptions in Clauses (a), (b), (c) or (d) abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court, tribunal or authority(except where such decree or order is passed in a proceeding which is instituted in such court, tribunal or before such authority before the 26th day of September 1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for a public purpose under any law for the time being in force. 9. Restrictions on acquisition of land in excess of ceiling area.- No person or a member of a family unit shall at any time, on or after the commencement date, acquire by transfer any land if he, or as the case may be, the family unit already holds land in excess of the ceiling area or land which together with any other land already held by such person, or as the case may be, the family unit, will exceed in the total the ceiling area. Explanation.- In this section, transfer has the same meaning as in Section 8. 10. Consequences of certain transfers and acquisitions of land.- (1) If- (a) any person or a member of a family unit, after the 26th day of September 1970 but before the commencement date, transfers any land in anticipati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Section 9, then as a penalty therefor, the right, title and interest of the person, or as the case may be, the family unit or any member thereof in the land so acquired or obtained shall, subject to the provisions of Chapter IV, be forfeited, and shall vest without any further assurance in the State Government: Provided that, where such land is burdened with an encumbrance, the Collector may, after holding such inquiry as he thinks fit and after hearing the holder and the person in whose favour the encumbrance is made by him, direct that the right, title and interest of the holder in some other land of the holder equal in extent to the land acquired in wilful contravention of Section 9, shall be forfeited to Government. 11. Restriction on partition: Where any land held by a family is partitioned after the 26th day of September 1970, the partition so made shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, and shall accordingly be ignored, and any land covered by such partition shall, for the purposes of this Act, be deemed to be the land held by the family; and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignate]. (5) The Collector so designated, shall for the purposes of the enquiry, be competent to exercise jurisdiction under this Act in respect of such person 6[or family unit] and the lands held by him[or it]. 87. Section 18 is of vital importance to consider the question and it reads as follows: 18. Collector to consider certain matters.- 18. On the day fixed for hearing Under Section 14, or any other day or days to which the inquiry is adjourned, the Collector shall, after hearing the holder and other persons interested and who are present and any evidence adduced, consider the following matters, that is to say,- (a) what is the total area of land which was held [by the holder on the 26th day of September, 1970; (b) whether any land transferred between the period from the 26th day of September 1970 and the commencement date, or any land partitioned after the 26th day of September 1970, should be considered or ignored in calculating the ceiling area as provided by Sub-section (1) of Section 10 or Section 11; (bb) whether the holder has any share in the land held by a family or held or operated by any co-operative society or held jointly with other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal allegedly in allowing the cross objection, it is referred to and it reads as follows: 33. Appeals.- (1) An appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal in the following cases: (1) an order Under Sub-sections (2) and (3) of Section 13 [not being an order under which a true and correct return complete in all particulars is required to be furnished; (2) a declaration [or any part thereof] Under Section 21; [(2a) an order Under Section 21-A; (3) an award Under Section 25; (4) an order refusing sanction to transfer or divide land Under Section 29; (5) an order of forfeiture Under Sub-section (3) of Section 29; (6) an amendment of declaration or award Under Section 37; and (7) an order of summary eviction Under Section 40. (1A) Any Respondent, though he may not have appealed from any part of the decision, order, declaration or award, may not only support the decision, order, declaration or award, as the case may be, on any of the grounds decided against him but take cross-objection to the decision, order, declaration or award which he could have taken by way of an appeal: Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guardian may appear, and in the case of any other person under disability, his authorised agent may appear. Explanation.- For the purposes of this section, the expression pleader includes an advocate, attorney, vakil or any other legal practitioner. 97. Among the changes that have been ushered in the definition clause, the following are noted: In Section 2, Sub-section(5A) was added and it defined 'Code' to mean Maharashtra Land Revenue Code, 1966 and Sub-section 6A, which was added as the 'commencement date' means date on which the Amending Act, 1972, comes into force. Section 2(11A) was inserted and it purported to define 'family unit' to mean family unit as explained in Section 4. In Section 2(20), definition of 'member of a family' was substituted and it reads as follows: (20) 'member of a family' means father, mother, spouse, brother, unmarried dependent sister, divorced and dependent sister, son, son's wife, unmarried daughter, divorced and dependent daughter, sons's son, son's unmarried daughter, son's divorced and dependent daughter. A completely different Chapter came to be inserted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly mandates that the Officer must find out what is the total area of land held by the holder on the commencement date. Clause (l) of Section 18 of the Act also contemplates that the Collector may take into consideration any other matter which in his opinion is necessary for calculating the ceiling area inter alia. Section 3 of the Act read in conjunction with Section 18(c) and (l), inter alia, establishes that the Collector has power and it becomes his duty, in fact, to ascertain what is the area held on the appointed day, viz., 02.10.1975. I have noticed that the Legislature has defined the words to hold means, to be lawfully in actual possession of land as owner or as tenant . Word owner is further defined to mean, in relation to any land includes a person holding the land as occupant, superior holder as defined in the Code, lessee of Government, as it is commonly understood . If the person is holding the land as occupant, he would be an owner. The word 'occupant' is defined with reference to its definition in the code. It is noteworthy that the word 'owner' includes the specified categories. If a person is owner as it is commonly understood, then he is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid. ... 103. In Kalwa Devadattam and Ors. v. The Union of India and Ors. AIR 1964 SC 880, the matter arose Under Sections 25A, 67 and 30 of the Income Tax Act, 1922. One of the questions which arose was whether the partition involved in the said case was sham. The High Court relied upon the circumstances to find out that the deed of partition involved in the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the intention of the Legislature. If the surrounding circumstances and the actual reality behind the transaction is objectively probed and it is established that the transferor or the previous owner, as the case may be, in the case of a transfer or a partition, respectively, continued to hold the property as such on the appointed day, it must be ignored. 105. A sham transaction demonstrated to be one when the appointed day dawns must certainly be treated as such, and the consequences, that are well-established in law, must afflict such a pretense of a transfer or a partition. Such a power must indeed vest with the Collector Under Section 18 read with Section 3 of the Act. To deny the Collector such power as the Appellants would attempt to persuade the court to hold, would involve asking the court to take leave of its commonsense and to place an interpretation on the Statute which will result in an absurd, besides an unjust situation. The interpretation canvassed by the Appellants would result in defeating the object of the Statute. The interpretation that the Legislature knows the existing law and that the Legislature does not waste words and further that an interpretation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials exist in the form of oral or documentary evidence, which clearly shows that the purported transfer or partition prior to 26.09.1970 was a sham transaction, the object of the Statute would be furthered by allowing the Collector or other authorities to decide the matter accordingly. 108. In Uttar Chand (supra), this Court in fact was considering the provisions of the Act where at a time when Sections 8, 10 and 12 had not been amended into its present avtar. The Act itself exempted lands which were acquired or transferred prior to 04.08.1959. This was provided in Sections 8, 9 and 12 of the Act, as it stood. In the said case, the High Court has found the transfer to be collusive. So also, was a decree involved in the said case under which a large extent of land was given to his mother by the adopted son. This Court held there was neither any pleading nor any case made out either before the Deputy Collector or before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer by Nemichand in favour of his mother, were collusive or tainted by fraud . The transaction had been entered into five years before the Act was brought int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If at all, anybody could impeach the said partition, it would be only the affected parties, viz., the persons who are legitimately entitled to a share in partition. This would be for the reason that they would be affected parties as their legitimate share would be illegally reduced as a result of giving properties by way of a share to those who are not legally entitled to the same, viz., the unmarried daughters. The persons who would be entitled to share in a partition would be the father and the son besides, no doubt, the wife. Strangely, the wife is not given any share in the partition. Therefore, the argument is that those sharers whose share would suffer diminution by the partition alone could possibly question it. This argument is liable to be rejected. It is one thing to say that a sharer whose shares may be affected, could question it in the appropriate forum. It is, however, a far cry from maintaining that the Competent Authority under the Act, when it has before it, evidence which points to the transaction being a sham or collusive affair, is disabled from finding it to be so. If one proceeds on the basis that the transaction was sham, the persons who would benefit from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this case, any interference is called for proceeding on the basis that there is power to find that the transaction is a sham. This question resolves itself into two further questions. Firstly, what is the effect of the Tribunal entertaining the cross-objection by the State when the two elder daughters of Vithaldas, to whom properties were allotted in the partition, were not parties? Secondly, whether the circumstances in which the partition was entered into and the material were sufficient for the High Court to uphold the findings by the Tribunal. Taking the second question first, the very first aspect which stands out is the finding that the partition is unnatural. It is dubbed unnatural for the reason that under the extant Hindu Law, daughters were not entitled to a share. No doubt, in Maharashtra, Section 29A has been inserted in the Hindu Succession Act, 1956 with effect from 1994. It reads as follows: 29A Equal rights to daughter in coparcenary property.- -Notwithstanding anything contained in Section 6 of this Act-- (i) in a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. The Appellants further contended that the two elder daughters were minors at the time of partition. They attained majority only in the year 1973 and 1975 but before the commencement day. 116. There is nothing unnatural if the father cultivates the property on behalf of the daughters. The finding by the Authorities, approved by the High Court, that the daughters did not have the resources to cultivate the land, not only pales into insignificance, but the Authorities/Courts have not appreciated the law correctly. A BRIEF SURVEY OF CERTAIN ASPECTS OF HINDU LAW 117. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors. AIR 1985 SC 716 the case arose under the very Act the Court is concerned with, and therein upon the death of a male leaving behind him his widow, mother and his son [the Respondent therein], the High court held that after the death of the Karta the joint family continued but each one of the three were entitled to a separate unit of ceiling area. This Court took the view that a female member who inherited the interest Under Section 6 of the Hindu Succession Act did not cease to be a member of the family. The Court inter alia held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See Gowli Buddanna v. CIT [(1966) 3 SCR 224: AIR 1966 SC 1523: (1966) 60 ITR 293] and Sitabai v. Ram Chandra [(1969) 2 SCC 544 : AIR 1970 SC 343: (1970) 2 SCR 1].) A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. (See N.V. Narendranath v. CWT [(1969) 1 SCC 748: AIR 1970 SC 14: (1969) 3 SCR 882: (1969) 74 ITR 190]...................... Women were not co-parceners under the extant law. In this regard, the following discussion in Mayne's Hindu Law and usage, sheds light. Women not coparceners.- It is obvious that, on the twin principles of a right vested by birth in the male issue only and of unobstructed heritage, the conception of a Mitakshara coparcenary is a common male ancestor with his lineal descendants in the male line, and that the female members of the family who have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that of a son; but she cannot enforce a partition. She may either be the mother or the stepmother of the sons. She can sue for her share where there has been a partition and she has not been assigned any share, provided there was no waiver of her rights or acquiescence on her part. Women could not enforce partition. This was a right which was conferred upon the males 458. Women cannot enforce partition.- Neither the wife, nor mother nor grandmother is entitled to enforce a partition; the sons have a perfect right to remain undivided as long as they choose. Any alienation of property made by the coparceners without their consent will therefore bind the wife, mother or grandmother as they do not become owners of any shares till an actual division of the joint estate. 121. Regarding the rights of daughters, in Mayne's Hindu Law, it is stated as follows: 461. Rights of daughters.- Where a partition takes place during the life of the father, the daughter has no right to any special apportionment. She continues under his protection till her marriage; he is bound to maintain her and to pay her marriage expenses, and the expenditure he is to incur is wholly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the question is really covered by authority. Thereafter, the question arose about the quantum of the gift involved in the said case. It be noted that the gift was of land worth Rs. 400 and the family property at the time of gift was worth Rs. 2400/-. Therefore, it constituted one-sixth of the property in the hands of the donor. The Court proceeded to hold as follows: The question whether the gift should be set aside on the ground of its being excessive presents more practical difficulty. The text of Yajnavalkya in Chapter I, Section 7, PI. 5, of the Mitakshara as interpreted by Vignaneswara defines the share of a daughter as one-fourth of what she would be entitled to if she were a son. The Smrithi Chandrika, in Chapter IV, cites a text of Katyayana which says: For the unmarried daughters a quarter is allowed and three parts for the sons, but where the property is small, the portion is considered to be equal. The author of the Smriti Chandrika says (Placituin 28): The meaning of the fourth or last portion of the above text, para 26, is that where the estate is small the share of each sister is considered by Vishnu and others as being equal to that of a son. Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the circumstances of each particular disposition. They refer to a case reported in 2 Morley's Digest, 198, and cite the observation of Lord Gifford in that case that it was absolutely impossible to define the extent and limit of the power of disposition because it must depend upon the circumstances of the disposition whenever such disposition shall be made and must be consistent with the law regulating such dispositions. In Anivillah Sundararatnayd v. Cherla Sitamma (1911) 21 MLJ 956 another principle is indicated. The learned Judges say: Here if the father had enforced a partition, he would have admittedly got not less than one hundred acres and it is impossible to say that a gift of 8 acres is unreasonable. We are unwilling to adopt this test based upon the father's right to dispose of what he gets for his own share on partition for deciding the question what disposition he might make while remaining a member of an undivided family. We think it must be left to the court in each case to decide whether the gift is reasonable in all the circumstances under which it is made. In this case, the donor, at the time of the gift, had only one son, and he was an infant. The sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt charges and other similar circumstances. If the father is within his rights to make a gift of a reasonable extent of the family property for the maintenance of a daughter, it cannot be said that the said gift must be made only by one document or only at a single point of time. The validity or the reasonableness of a gift does not depend upon the plurality of documents but on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the fact that two gift deeds were executed instead of one, cannot make the gift anytheless a valid one. 125. A Joint Hindu Family would consist of a large number of persons. A Joint Hindu Family could, however, be understood to be a narrower body of individuals that constitutes a coparcenary. The coparceners, at the relevant point of time, consisted of males, viz., son, grandson and the great grandson. They were persons who were entitled to demand partition. When a partition took place, however, certain other persons were also entitled to share in the property. It must be remembered that a partition involves separate enjoyment and what was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 35.12 acres is also allotted to Vithaldas. Thus, a total of 32.01 acres is given to him. In favour of his only son, who is aged 4 years and who is the third Appellant before us, an extent of 30 acres 64 ares is seen set apart. The Appellant No. 1 (eldest daughter), who is the eldest child and who was aged 14 years, was given 17 acres and 23 ares. An extent of 14 acres and 6 ares is set apart to the second Appellant before us from out of Sy. No. 14 Babulgaon out of 35.12 acres who is again the other daughter of Vithaldas and aged 11 years at that time. The fifth party to the partition deed Kumari Beladevi aged 8 years is given 14 acres and 06 ares from Sy. No. 14 Babulgaon out of 35.12 acres. Thus, it can be seen that from the partition deed itself that the extent of land made subject matter of partition was 106 acres. This is apart from the land which was the subject matter of the gift in favour of the wife of Vithaldas who is made a proforma Respondent before this Court. 127. Vithaldas was the karta of a Hindu Undivided Family (HUF). The Coparceners were Vithaldas and his son. Vithaldas, as father, had the unilateral right to partition the joint family property. The law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 8, 11 and 14 years. 2. The wife of the Vithaldas not being given any share. 3. The children being represented by their grandfather as a guardian when the parents are alive. 4. Allotment of shares to the daughters when daughters did not have any right to share in the partition of a Hindu Undivided Family at that point of time. Out of a total of 106 acres, 45 acres and 35 ares can by no stretch of imagination be treated as 'small' or 'reasonable'. While it may be true that after 1994, a Hindu daughter in Maharashtra had been recognized as a coparcener vide Section 29A of the Hindu Succession Act, 1956 and entitled to a share as such, the question to be posed and answered is whether such right existed in 1970 when the partition was entered into. The answer can only be in the negative. 129. No doubt, as held by this Court in the decision supra, it was open to a Hindu to make a gift of a small portion or a reasonable portion of his daughter. In fact, there is a line of thought that though styled as partition it could be held to be a gift in the absence of a pre-existing right. 130. The question in this case is not whether a gift could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nephew got a share as a gift or in consideration of surrender of part of the property to the Appellant. The value of the property being more Rs. 100/-, whether it was a gift or an exchange. It offended against, the provisions of Transfer of Property Act. The first appellate Court took the view that it was not a gift but a partition and the nephew was made a co-sharer. The learned Judge set aside the findings and remitted the matter back to consider whether any valid title has been acquired independent of the point decided in the judgment. The learned Court took the view that a person could not by mere recognition as a co-sharer by another co-sharer acquire title without complying with the provisions of the Transfer of Property Act. 133. In Ponnu and Anr. v. Taluk Land Board, Chittur and Ors. (1981) KLT 780, though rights were purported to be conferred upon his son under a partition deed, it was contended before the authority that it may be treated as gift. It is to be noted that to be a valid gift not only there must be registration but there must be attestation by two witnesses. [See Section 123 of the Transfer of Property Act]. It is further relevant to notice that in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that he continued to hold the land or that the transaction was a sham transaction by itself may not be fatal to the case of the State though ideally it should have been mentioned. The parties have proceeded before the Tribunal and the High Court understanding the purport of the pleadings in the cross objection to be that there is no effective transfer under the partition. THE MATERIALS RELIED ON IN THE ORDER OF THE TRIBUNAL IN REGARD TO THE FINDING ABOUT THE PARTITION DEED 137. The Tribunal notes that the eldest among the daughters Shakuntala Bai was born on 03.11.1955. The second of the elder daughters Durga Devi was born on 29.08.1957. They were 14 and 12 years of age on the date of the partition in 1970. Vithaldas continued to be the owner as the title has not passed by a legally valid instrument. As regards the actual possession in regard to Survey Nos. 14 and 12 of Babul Gaon in which the elder daughters were allotted the shares, it was found as follows: 15. As regards the actual possession of S. Nos. 14 and 12 of Babulgaon, the crop-statements in respect of S. No. 14 for the year 1970-71 and 71-72 shows the cultivation of Vithaldas, while during 1972- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord of rights in relation to land in question with effect from 31.09.1970 till 02.10.1975 shall also be placed on record. Needful shall be done within six weeks. 139. Pursuant to the same an additional affidavit by son of Late Vithaldas has been filed on 09.03.2017. Thereunder it is inter alia stated that on an application to the concerned office, reply was received to the effect that with regard to the field Survey No. 12 and 14 of village Babulgaon as well as field Survey No. 64 village Mangrul, that the record from 1970 to 1975 is in a mutilated condition and the mutation register for the period from 1964 to 1978 is not traceable. For Village Mangrul, the crop statement is not available for the period 1970-1972, and for Village Babulgaon crop statement is not available for the period 1970-1973 for Survey No. 14, while crop statement is not available for Survey No. 12 for the period 1971-1972. 140. It is stated further that the name of the son is recorded in the Crop Register for the period 1972 to 1975 as occupant. Certain copies of the Record of Rights from the register of crop prepared Under Rule 29 of the Maharashtra Land Revenue Record of Rights and Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h her grandfather both before and after the proceedings were conducted. In this connection as noticed by the Tribunal crops statements for the other years were not filed. They were not produced in the High Court also. No evidence has been tendered though it was open to adduce evidence as is permitted under the Act. 143. I would think on a conspectus of the material, I feel reinforced that the partition was indeed not only unnatural but it was not intended to have effect. THE EFFECT OF THE CROSS OBJECTION BEING ALLOWED IN THE ABSENCE OF THE TWO ELDER DAUGHTERS TO WHOM THE PROPERTY WAS ALLOTTED IN THE PARTITION. 144. It is undoubtedly true that the appeal before the Tribunal was filed by Late Vithaldas, his wife, son and youngest daughter. It is also true that there was no occasion for the elder daughters to challenge the order passed as the properties allotted to them in the partition deed dated 31.1.1970 stood excluded. It is in such an appeal that the Government filed a cross objection. Undoubtedly, the cross objection was maintainable both under the express provisions of Section 33 of the Act as also Under Order 41 Rule 22 Code of Civil Procedure which was also m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.- -In this section, the expression father and mother do not include a step-father and a stepmother. 148. A perusal of Section 6 of the Hindu Minority and Guardianship Act would show that in the case of unmarried girl, the father and after the father the mother would be the natural guardian. This is in respect of both the person of the minor and the property of the minor. When the writ petition was filed, the eldest daughter was clearly major and married. Durga Devi was also a major. 149. The State would contend the partition dated 31.1.1970 was a sham and Vithaldas continued to hold the property. It is not unnatural that he would challenge the inclusion of such property in the ceiling account as property of the family unit on the basis that he continued to be the holder. Allowing the cross objection by the Tribunal if viewed in this perspective did affect Vithaldas. He c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition as Respondents in the High Court is also shown. The elder daughters were Petitioner No. 1 and 2 in the special leave petition and upon leave being granted, they are in the party array as Appellants 1 and 2. But they are before this Court only as legal representatives of Vithaldas who instituted the writ petition and appeal along with his wife. Be it noted that one out of the two Appellants in the High Court, namely, Vithaldas passed away. His wife has not pursued the matter before this Court and she is a proforma Respondent No. 4 in this appeal. The appeal is prosecuted by the present Appellants in their capacity as legal representatives of Vithaldas. Contentions which were available to Vithaldas alone, would therefore be available to them. In this Court, I may refer to the judgment of this Court reported in Jagdish Chander Chatterjee and Ors. v. Shri Sri Kishan and Anr. (1972) 2 SCC 461, reads as follows: 10. Under Sub-clause (ii) of Rule 4 of Order XXII, Code of Civil Procedure any person so made a party as a legal representative of the deceased, Respondent was entitled to make any defence appropriate to his character as legal representative of the deceased-Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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