9911796707
TMI Blog2019 (8) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lands taken over from undertakings and the integrity of which is maintained in compact blocks, for ensuring the full and efficient use of the land for agriculture and its efficient management through corporations (including a company) owned or controlled by the State, be granted to such corporations or company; and for matters connected with the purposes aforesaid 2. Chapter III of the said Act made provisions restricting transfers and acquisitions and the consequences of contraventions. The relevant Sections falling in the Chapter are reproduced hereunder: Section 8-Restriction on transfer Where a person, or as the case may be, a family unit holds land in excess of the ceiling area on or after the commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Sub-section, a transfer shall not be regarded as made on or before 26th September, 1970 if the document evidencing the transfer is not registered on or before that date or where it is registered after that date, it is not presented for registration on or before the said date. (2) If any land is possessed on or after the commencement date by a person, or as the case may be, a family unit in excess of the ceiling area, or if as a result of acquisition (by testamentary disposition, or devolution on death, or by operation of law) of any land on or after that date, the total area of land held by any person, or as the case may be, a family unit, exceeds the ceiling area, the land so in excess shall be surplus land. (3) Where land is acquired in wilful contraven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 aforesaid provisions, and in the present appeal we are practically concerned with one document, which is the Partition Deed dated 31.1.1970, which has been duly registered, i.e., both the document and its registration are undisputedly before the cut-off date of 26.9.1970. 5. The Partition deed has been executed between five parties-late Shri Vithaldas Jagannath Khatri and his then minor son and three minor daughters. It may, however, be noticed that two of the minor daughters attained majority before the commencement date of 2.10.1975, though they were not major on 26.9.1970. In terms of this document, the agricultural land of the Hindu Undivided Family ('HUF') is sought to be divided by mentioning all the parties as part of the HUF. The lands were stated to be used jointly and shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 aspects of holding of Vithaldas were examined. On the matter being revisited in these proceedings, land measuring 59 acres and 35 gunthas was deemed surplus, Under Section 3(2) of the said Act, while excluding (a) Potkharab land of Vithaldas, to the extent of 12.16 acres; (b) Field Survey No. 106, which was stated to be vesting with the wife of Vithaldas, having been gifted by her father-in-law Jagannath, and found that the same continued to be in possession of Jagannath, as also recorded in the Record of Rights and crop statements; (c) the land allotted to the two major daughters of Vithaldas, Shakuntala and Durgadevi. 10. The appeal proceedings were lodged by Vithaldas, his wife, the son and the third daughter, Beladevi, Under Section 33 of the said Act. The other two minor daughters, who had attained majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 the members of the HUF had assailed the Partition Deed on any account. These pleas also did not find favour on the ground that it was late Vithaldas who sought to lose the land and, in effect, it was for him to see how to confer the rights on his two elder daughters. The two elder daughters were held to form part of the family unit. 15. The Special Leave Petition ('SLP') was filed only by late Vithaldas, through his legal representatives. The two elder daughters are, thus, Appellants as legal heirs of late Vithaldas, in the present proceedings. This is of significance as the contention of Respondents is that the two elder daughters only stepped into the shoes of late Vithaldas, and that they cannot de novo start proceedings in their own rights. Leave was granted on 31.8.2009, and the interim order of status quo was directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 insofar as being treated as an aid for the interpretation of a statute. It cannot restrict or enlarge the provisions of the Act [Raymond Ltd. v. State of Chhattisgarh (2007) 3 SCC 79; State of West Bengal v. Union of India [AIR 1963 SC 1241] Thus, the provisions have to be read, to see whether there is any ambiguity, requiring any further aid for construction of those sections, or whether they are explicit and clear in their meaning [The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).] 20. On a reading of the provisions of Chapter III, including Sections 8, 10 & 11 of the said Act, there is no ambiguity as would require any aid to construct the meaning of those Sections. 21. The commencement date would be the date from which the provisions would come into force. However, the amendment of 1972 created a deemed fiction by inserting the provision for setting at nau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 subsequently producing them for registration is obviated. 24. Section 11 specifically talks about the partition deed in a similar manner and, thus, not only transfers whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, are included, even the avenue by way of a partition deed has been shut out, unless it has been executed prior to the cut-off date. There is no doubt that in the present case, the partition deed was executed before the cut-off date of 26.9.1970 and registered even prior to that date. 25. On behalf of the Appellants, a number of judgments have been referred to, on how a deemed fiction should be construed. Thus, a legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, thus, the High Court would not be justified in presuming that the transfers made were either collusive or fraudulent. The appellate authority allowing the cross-objections: 28. The order passed by the competent authority, being the SDO, insofar as the two elder daughters are concerned, held in their favour as far as the lands vested in them, in pursuance of the Partition Deed. There was, thus, no occasion for them to file an appeal, nor did they so file an appeal. Other members of the family, who filed the appeal, did not implead them as parties. Once again, naturally so, as they would not be the interested parties, or even pro forma parties in that behalf. However, once the State decided to file cross-objections and, in that, impugned even that portion of the order of the SDO which held in favour of the two elder daughters, there is no hesitation in stating that they were necessary parties to those pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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 obligations, at the time of her marriage or even thereafter. In fact, there is an observation made that gift made of 1/6th of the total holding of the ancestral property is valid [Pugalia Vettorammal and Anr. v. Vettor Goundan [(1912) 22 MLJ 321]. This is in view of the fact that such gifts made are for pious purposes, but the alienation must be by an act inter vivos [R. Kuppayee v. Raja Gounder [(2004) 1 SCC 295]. 33. In Guramma Bhratar Chanbasappa Deshmukh v. Mallappa Chanbasappa and Ors. (1964) 4 SCR 497, the legal position has been summarized as under: 15... In Madhaviya, pp. 41 and 42, a text of Katyayana is cited authorizing the gift of immovable property by a father to his daughters besides a gift of movables up to the amount of 2000 phanams a year... ...Manu says To the unmarried daughters by the same mother let their brothers give portions out of their allotments respectively, according to the class of their several mothers. Let eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discharged by the gift in 1899.... ...Venkataramana Rao, J. in Sithamahalakshmamma v. Kotayya [(1936) 71 MLJ 259] had to deal with the question of validity of a gift made by a Hindu father of a reasonable portion of ancestral immovable property to his daughter without reference to his son. Therein, the learned Judge observed at p. 262: There can be no doubt that the father is under a moral obligation to make a gift of a reasonable portion of the family property as a marriage portion to his daughters on the occasion of their marriages. It has also been held that it is a continuing obligation till it is discharged by fulfilment thereof. It is on this principle a gift of a small portion of immovable property by a father has been held to be binding on the members of the joint family. Adverting to the question of the extent of property he can gift, the learned Judge proceeded to State: The question whether a particular gift is reasonable or not will have to be judged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, where it has been observed as under: 5. If the obligation is moral and continuing one and could be made long after the marriage, could it be said that it is not within the competence of a father to make such a gift before the marriage? In my opinion, there is not much difference in principle between a gift after the marriage, and a gift before the marriage, the object of such a gift being to make a future provision for the bridal couple. 6. This leads me to the next question whether the circumstance that a gift is not described as a marriage provision under the document renders it an invalid one? To my mind, it appears it does not affect the validity of the gift. When a father makes a gift of a reasonable portion of the property to an unmarried daughter it may be assumed that it was meant to be a marriage provision. It is to be observed in this case that under Ex. P. 1 the Plaintiff was given only a vested remainder and the gift in her favour would take effect only after the lifetime of the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit. The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas. 39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered document. Thus, even if one construes it as a partition-cum-gift deed, it would make no difference as the requirements of a gift deed, Under Sections 122 & 123 of the TP Act stand satisfied. 41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. 42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal filed by Vithaldas as also cross objections by the State. By order dated 02.03.1982, the writ petition filed by Shri Vithaldas came to be allowed on the score that principles of natural justice were violated. Thereafter, the Sub-Divisional Officer passed order dated 07.05.1984 whereunder he excluded the land given to his elder daughters, viz., Shakuntala and Durga Devi, under the partition deed. The land which is allotted to the elder daughters by the partition deed, was comprised in village Babulgaon. It comprised of a total 31 acres and 29 guntas. In Survey No. 12, the area is 17 acres 23 guntas and in Survey No. 14, the area is 14 acres and 6 guntas. He further found that the family unit was entitled to retain 60 acres and 15 guntas. 6 acres 15 guntas were found to be Pot kharab lands and adding the same to 54 acres, (the limit for the lands in question) the family unit was found entitled to hold 60 acres and 15 guntas. It was further found that 59 acres and 35 guntas were deemed to be surplus land Under Section 3(2) of the Act. The land gifted to his wife Kamla Devi by Shri Jagannath Khatri (father of Vithaldas) was found as having remained with him (the donor) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellants and allowed the cross objections. Resultantly, the land, which is the subject matter of partition deed and which stood allotted to the elder daughters and the property which was the subject matter of gift deed in favour of his wife came to be included in total land holding of the family. The total extent of land was found to be 181 acres and 26 guntas. 111 acres and 39 guntas were declared surplus land. 54. Shri Vithaldas and his wife challenged the order before the High Court. Therein, Appellants 1 and 2 before us were Respondents 6 and 7. Appellants 3 and 4 before this Court were Respondents 4 and 5. The learned Single Judge, by judgment, upheld the order of the Tribunal, in regard to viz., the property, which was subject matter of the gift in favour of the second Appellant (wife) and the properties which were set apart for the two elder daughters. On the basis of an error determined by the learned Single Judge, the surplus land was held to be 103 acres and 36 guntas. It was Shri Vithaldas and his wife who preferred the Letters Patent Appeal No. 3 of 1991. By judgment dated 27.11.2007, which is impugned in this appeal, the Division Bench upheld the view taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, the Crop Statement in respect of Survey No. 14 for the year 1970-1971 and 1971-1972, showed the cultivation by Vithaldas. For the years 1972-1973 to 1974-1975, it was shown as jointly cultivated by Vithaldas and daughter Durga Devi. 61. In respect of Survey No. 12, the property allotted to daughter Shakuntala, it was found that it was being cultivated by Vithaldas along with daughter Shakuntala. 62. That crop statements for other years were not filed it was noted. Ludicrous it was found that the minor daughters had the necessary wherewithal to cultivate the land independently. It was found that Vithaldas continued to hold the lands. 63. The writ petition was filed, viz., [Writ Petition No. 111 of 1985] by Vithaldas and his wife and wherein Respondent 6 was Smt. Shakuntala and Respondent 7 was Smt. Durga Devi, the elder daughters. Be it noted that the elder daughters did not challenge the order of the Tribunal. The learned Single Judge has proceeded to uphold the findings of the Tribunal except as we have noticed. 64. Learned Single Judge referred to Bhagwandas Heda and Ors. v. State of Maharashtra and Ors. 1983 Mh.L.J. 825, and the decision in Writ Petition No. 2997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings are to be found in paragraphs 9, 10, 11, 12: 9. We have carefully considered the rival submissions. First, in 1970, there could be no question of daughters being entitled to a share of family properties in a partition during the life-time of their parents. Further, showing father of Appellant No. 1, as their guardian in such a partition, would not result in severing them from the Appellants' family. Had Appellant No. 1 so wished, he could have gifted the properties to Respondent Nos. 6 and 7, but that too would not have mattered so long as Respondent Nos. 6 and 7 continued to be a part of his family. The judgment of the Supreme Court in Uttar Chand v. State of Maharashtra, reported at AIR 1980 SC 806, on which the learned Advocate for the Appellants places reliance, does not help the Appellants, since in that case, the Apex Court was considering actual transfers effected before the relevant date, whereas in the case at hand, there are no such actual transfers, but only attempted evasion, if we may so describe the partition dated 31-1-1970. Further, as rightly observed by the learned Single Judge, the 7/12 extracts of the fields in question show that they were in join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency good. Thereafter, the question was posed whether the Tribunal could have entertained the cross objection which affected the rights of the elder daughters without their presence in the party array before the Tribunal. 68. The High Court dealt with the judgments of the High Court of Judicature at Allahabad in Kundomal Ganga Ram v. Topamal Chotamal AIR 1953 Allahabad 710 and Malireddi Venkatapathi and Ors. v. Malireddi Veerayya and Ors. AIR 1943 Madras 609 for the principle that a Respondent maintaining cross objection could do so after a person affected by the cross objection was brought on the party array and proceeded to hold as follows in paragraphs 21 and 23: 21. We have carefully considered these submissions. Apart from the question whether Respondent Nos. 6 and 7 had any right in the concerned fields, it seems to us that there was absolutely no possibility of their rights, if any, being prejudicially affected by inclusion of concerned lands in the holding of Appellant No. 1. It would be Appellant No. 1, who would stand to lose corresponding acreage after adjusting the claims of Respondent Nos. 6 and 7, if he was so keen to ensure that they got what he desired to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughters, which were acquired under the registered partition deed dated 31.01.1970, must be excluded in calculating the land holding by the family unit. He seeks to buttress his position by pointing out that the Legislature has fixed the cut off date after which partition deed would be ignored for the purpose of calculation of the ceiling limit. Indeed, Section 11 of the Act, declares that any partition after the 26th Day of September, 1970 shall be deemed unless the contrary is proved to have been made in anticipation or in order to avoid or defeat the objective of the Amending Act, 1972 and shall accordingly be ignored. Consequently, the land covered by such partition shall, for the purpose of this Act, be the land held by the family. The Appellants placed further store by Section (10) of the Act which again contemplates 26.09.1970 as the date beyond which transfers would be held to be infirm as executed for defeating the object of the Amending Act, 1972. Section 10 of the Act further proceeds to declare that the ceiling account will be determined ignoring such transfers. As far as Section 8 of the Act is concerned, it is directed against transfer made on or after the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiver (1996) 6 SCC 185). 74. Still further, it is contended that while interpreting the deeming fiction, recourse to the object of the Statute would be permissible only where the language is ambiguous (See (2009) 1 SCC 540). There can be no quarrel with these principles. CONTENTIONS OF THE STATE 75. Per contra, the learned Counsel for the Respondent-State would seek to support the order of the High Court. He would point out that despite and notwithstanding the so-called partition deed dated 31.01.1970, it was the father who continued to be in possession and to take the income. He was equally carrying out the cultivation. Partition deed, therefore, was a ruse and it is not to be taken into account for determining the extent of the land and the land seemingly allotted to the elder daughters must also be taken into consideration which is what has been done by the Tribunal and approved of by the High Court. He would point out that the court must lose sight of the fact that the Legislation is a beneficial Legislation intended to empower the landless by endowing them with property rights over land and the judgment of the High Court does not warrant interference. THE 'ACT': S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer" and "partition" have the same meaning as in Section 8. Section 12 fell under Chapter IV under Chapter Heading Surplus Land and it provided for filing returns. Reference is made to the far-reaching changes which were brought out by the Maharashtra Act No. XXI of 1975. The preamble reads as follows: WHEREAS, in the State of Maharashtra, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 imposed for the first time, in the public interest the maximum limit (or ceiling) on the holding of agricultural land, and provided for the acquisition of land held in excess of the ceiling for distribution thereof amongst the peasantry of the State, and in particular, among landless persons; and for other purposes therein stated; AND WHEREAS, it is now expedient to lower, in the public interest, the maximum limit (or ceiling) on the holding of agricultural land in the State for making available additional land as surplus, so as to secure a still more equitable distribution of land, and for the purpose of removing economic disparities, and thereby for assisting more effectively landless and other persons; and generally for the purpose of so distributing the agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, the share of such person in the land aforesaid shall be calculated in the following manner: (i) in the land held by a family of which the person is a member, the share of each member of the family shall be determined so that each member who is entitled to a share on partition, shall be taken to be holding separately land to the extent of his share, as if the land had been so divided and separately held on the relevant date; (ii) in the land held in or operated by a co-operative society or held jointly with others or held by a firm, the share of the person shall be taken to be the extent of land such person would hold in proportion of his share in the co-operative society, or his share in the joint holding or his share as partner in the firm, as if the land had been so divided and separately held on the relevant date. 83. Section 5 provides for "ceiling area". Section 5(1) and 5(2) reads as follows: 5. Ceiling Area.-(1) In each of the districts and talukas specified in column 1 of the First Schedule, for each class of land described in columns 2, 3, 4, 5 and 6 thereof, the ceiling area shall be the area mentioned under each such class of land against such district or tal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red shall be taken into consideration, and the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vivos, and includes also partition made by a decree or order of a court, tribunal or authority. 85. Section 12 falling in Chapter IV deals with submission of returns and provides for submission of returns. Section 12(1) reads as follows: 12: SUBMISSION OF RETURNS-[If any person or family unit- (1)(a) has at any time after the 26th day of September 1970 but before the commencement date held, or (b) on or after the commencement date acquires, holds or comes into possession of, any land (including any exempted land), in excess of the ceiling area, or 86. Section 14 provides for the power of the Collector to hold inquiry: 14. Power of Collector to hold enquiry.- (1) As soon as may be after the expiry of the period referred to in Section 12 or the further period referred to in Sub-section (2) of Section 13, the Collector shall either suo motu whether or not a return had been filed or] on the basis of the returns submitted to him under either of those sections, and such record as he may consider it necessary to refer to, hold an enquiry in respect of every person 2[or family unit] holding and in excess of the ceiling area, and shall, subject to the provisions of this Chapter, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating the ceiling area under the provisions of Sub-section (1) of Section [10 or Section 11?] (e) whether any land has been acquired or possessed on or after commencement date by transfer or by partition? (f) whether any land has been acquired on or after the [commencement date] by testamentary disposition, devolution on death or by operation of law? (g) what is the total area of land held at the time of the enquiry, and what is the area of land which 10[the holder] is entitled to hold? (h) whether any land is held by [the holder] as tenant, and if so, whether his landlord has a subsisting right of resumption of the land for personal cultivation, under the relevant tenancy law applicable thereto? (i) whether any land held by[the holder] is to be forfeited to Government Under Sub-section (3) of Section 10, or of Section 13, or should be deemed to be surplus land under any of the provisions of this Act? (j) whether the proposed retention of land by [the holder] is in conformity with the provisions of Section 16? (k) which particular lands out of the total land held by 1[the holder] should be entitled as delimited as surplus land? (l) any other matter which, in the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under that rule. (2) Every petition of appeal Under Sub-section (1), shall be accompanied by a copy of the decision, order, declaration or award, as the case may be, against which the appeal is made. (3) In deciding such appeal the Maharashtra Revenue Tribunal shall exercise all the powers which a court has and follow the same procedure which a court follows, in deciding appeals from the decree or order of an original court, under the Code of Civil Procedure, 1908. (V of 1908). 94. The power of the Tribunal is provided Under Section 34, which reads as follows: 34. Power of Maharashtra Revenue Tribunal to confirm, etc.- . The Maharashtra Revenue Tribunal, in deciding an appeal Under Section 33, may confirm, modify or rescind the decision, order, declaration or award or the amended declaration or award, as the case may be. 95. Section 41 bars the jurisdiction of Civil Court and it reads as follows: 41. Bar of jurisdiction.- No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Commissioner, Collector, Tribunal, the officer authorized Under Section 27, the Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Vithaldas is liable to be included in the account of the family unit? 3. What is the effect of the cross-objections of the State being allowed in the absence of elder daughters, in the appeal before the Tribunal? POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION PRIOR TO 26.09.1970 99. In order to appreciate the intention of the Legislature in this regard, the word "transfer" and "partition" as employed in Section 10 and 11 of the Act must be understood as meaning a transfer and a partition which is genuine. In other words, a transfer, be it by any means, as defined Under Section 8, must actually result in the divesting of rights of the previous owner and vesting of rights in the transferee. The word "transfer" must be understood, as describing, cases where under the law, by means of the devices mentioned in the Explanation to Section 8, the previous owner ceases to be the owner and the transferee acquires his rights. The legislative intention was that such transfers, which otherwise would pass muster as genuine transactions and therefore would have the effect of defeating the object of the Act as contained in particular in Section 3 and the Chapter relating to distributi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land for his maintenance. 101. The Collector, therefore, is duty bound in the course of the inquiry to enquire and ascertain as to what exactly is the holding (as defined in the Act) as on the commencement day. In the matter of gleaning the meaning of a Statute and demystifying the words of a Statute and discovering the intention of the legislation, the court must bear in mind certain presumptions. The court will presume that the Legislature has taken into consideration the felt necessities of the times. It will further assume that the Legislature was aware of the law as it exists. It will not begin with the assumption that the Legislature is ignorant of the opinions expressed by the courts on points of law. It will presume that the Legislature was aware of the decisions rendered by the courts on points of law. 102. In Sree Meenakshi Mills Ltd., Madurai v. Commissioner of Income Tax, Madras AIR 1957 SC 49, this Court had occasion to consider what the word "benami" has come to denote: 30. Now, the assumption underlying this argument is that the Tribunal had found in its order that the intermediaries were benamidars for the Appellants, but there is no basis for this in the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose will be served by taking steps. In the course, the Court proceeded to hold, inter alia, as follows: 14. ... The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at a partition. Counsel for the Plaintiffs practically conceded that fact, and submitted that Nagappa's desire to defeat his creditors, and to save the property for his sons, was the real cause for bringing the deed of partition into existence. Counsel claimed however that Nagappa had adopted the expedient of effecting a partition with the object of putting the property out of the reach of his creditors and the genuineness of that partition should not be permitted to be blurred by the unmeritorious object of Nagappa. But the continued management of the property by Nagappa since the partition, and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land for the purpose of calculating the ceiling limit. 106. Section 30 of the Act sets out the powers of the Collector when he holds that inquiry under the Act. It declares that the Collector shall have same powers as are vested in the courts under the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') in trying a suit in respect of the following matters: (i) Proof of facts by affidavit; (ii) Summoning and enforcing attendance of any person and examining him on oath; (iii) Compelling the production of documents. Under Section 31 of the Act, the Collector is obliged to set down reasons for his decision. Thus, the Collector is endowed with the powers of the civil court in the matter of both summoning and enforcing attendance of any person. The person summoned can be examined on oath. He has power also to compel production of any document. For the purpose of determining whether a document is a collusive, a fraudulent or a sham transaction, it would indeed be argued that the Authority to so decide must be in a position to consider relevant evidence in the form of deposition of witnesses as also evaluate documentary evidence which may throw light on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of his adopted son and the transfer by the adopted son Nemi Chand to his mother were either collusive or fraudulent. There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court. 109. This was in fact a case where the finding of the court is based on there being no foundation in the pleadings nor any evidence to support the finding that the transactions were collusive or tainted by fraud. The transactions had taken place a good five years before the Act came into force. On a proper appreciation of the decision, though it may be contended that the decision should be understood as declaring that a transaction, even if it is collusive, having been entered into prior to the cut off date, it cannot be impeached, it may not be the correct way of looking at the decision. If there were pleadings or material to support the finding that it was collusive, the decision of this Court may not have been the same. There being no material to find that the transaction was either collusive or fraudulent, necessarily the transfer being genuine, there was no provision in the Act which extended to invalidate the transaction entered into five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellants would result in parties defeating the Act by setting up a pretense and wearing a cloak and this cannot be permitted. 113. Thus, it can be concluded as follows: i. A transfer or a partition entered into before 26.09.1970, if it is not genuine and is collusive or is a sham transaction, can, in a given case, on materials being present, be found to be so by the Authority under the Act; ii. What is contemplated Under Sections 10 and 11 of the Act read with Section 8, undoubtedly, is a transfer as defined in Section 8, being a genuine transaction. A fraudulent transaction or a sham transaction if entered into before 26.09.1970, would incur the wrath of Section (3), and a farce of a partition likewise, bringing about a mock division of property among the sharers, would also incur wrath of Section (3) of the Act. No doubt, even if the transaction is a sham transaction, be it a transfer or a partition, needless to say, it would incur the wrath of Sections 10 and 11 and it would not be necessary to justify the invalidity with any materials if entered into or effected after 26.09.1970. iii. It does not mean that a transaction which is entered into, particularly after the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such pre-deceased son or of such pre-deceased daughter: Provided further that the share allottable to the pre-deceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or of the pre-deceased daughter as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (iv) Nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986. The next aspect considered relevant for holding the partition unnatural is that the wife of Shri Vithaldas was entitled in law upon a partition to a share but she is not given any share. The further finding is that Vithaldas continued to be in effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Hindu coparcenary is a much narrower body... For, coparcenary in the Mitakshara law is not identical with coparcenary as understood in English law: when a member of a joint family dies, 'his right accresces to the other members by survivorship, but if a coparcener dies, his or her right does not accresce to the other coparceners, but goes to his or her own heirs'. When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those persons who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation. 8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a share under the heading Share for women. The following is the discussion in regard to wives. 453. Shares for women.- The interest of the women of the family, whether wives, widows, mothers or daughters, where a partition took place at the will of others were specially safeguarded by the Sanskrit writers. Wife.- Yajnavalkya says: "If he(father) makes the allotments equal, his wives to whom stridhana has been given by the husband or the father-in-law must be made partakers of equal portions". Explaining this text, the Mitakshara says: "When the father, by his own choice, makes all his sons partakers of equal portions, his wives to whom peculiar property had not been given by their husband or by their father-in-law, must be made participants of shares equal to those of sons. But if separate property have been given to a woman, the author subsequently directs half a share to be allotted to her: "Or if any had been given, let him assign the half". 120. A wife however could not demand a partition. The share of the wife under the Mitakshara law has been dealt with as follows in Mayne's Hindu Law: 455. Wife-A wife however could never demand a partition during the life of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to ancestral property. The father has power to effect a division not only between himself and his sons but also between the sons inter se. So also it would seem that he has the power to make a division when the sons are dead and his grandsons along are living. The power extends not only to effecting a division by metes and bounds, but also to a division of status. In all these cases, the father's power must be exercised bona fide and in accordance with law; the division must not be unfair and the allotments must be equal. THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER 123. In the decision in Annivillah Sundaramya v. Cherla Seethamma and Ors. 1911 (21) MLJ 695, the Court was concerned with the gift of 8 acres of ancestral land by a Hindu father to his daughter after her marriage when the family possessed 200 acres. The gift of 8 acres was not unreasonable. In the above scenario it was found that if the father had enforced a partition, he would have admittedly got not less than 100 acres. In Pugaria Vettoramal and Anr. v. Vettor Gounder, Minor, by his next friend and mother Poochammal and Anr. 1912 (22) MLJ 321, a Division Bench of the Madras High court elaborately co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senabutty Misrain (1882) 8. Cal. 537. The social condition existing at the time of the gift would be a proper matter to be taken into account; and where the property is very small and the expenses of marriage heavy in the community of the parties, it may not be improper to allot a share equal to that of the son for the expenses of marriage and for dowry together. At the same time, where the property is very large, worth say several lakhs of rupees, the courts may not be prepared to uphold a gift of the share permissible according to the text of Yajnavalkya. The right of the daughter not being confined, as pointed out in Rantasami Ayyar v. Vengidusami Ayyar (1898) 22 Mad. 113 and Churamon Sahu v. Gopi Sahu I.L.R. (1909) ILR 37 Cal. 1 to have the expenses of her marriage defrayed, it might be reasonable to allot something more than such expenses even where they are comparatively heavy. At the same time, it would not be fair to the sons that the father, after spending a large amount on the marriage of his daughter, should make a gift of any considerable property to her. It must also be borne in mind that it would be unfair to the daughter that she should be told that her claim has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the property and the gift was found valid. The question fell for consideration of this Court in the decision reported in Guramma Bhratar Chanbasappa Deshmukh and Ors. v. Mallappa Chanbasappa and Anr. AIR 1964 SC 510. Therein, this Court after an elaborate survey of decisions including the decisions referred to by me, held as follows: 18. The legal position may be summarized thus: the Hindu law tests conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time. But, it became, crystallized into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represented by Guardian grandfather Jagannath Ganeshdas Khatri, age 65 years. Occu. Of all: Agriculture, all r/o. Mangrul Navghare, Tq. Chikhali, Dist. Buldhana. We execute & kept the partition deed as under: We all are the members of the HUF and party No. 2 to 5 are the issues of part No. 1 and party No. 3, 4, 5 are the sisters of the party No. 2 and party No. 2 is the brother of party No. 3, 4, 5. We have been using our property jointly. Party No. 2 to 5 have to take the education and to see that each of them take it freely and to provide for the expenses therefore and to see that each of them will meet the expenses out of their own property and that no dispute took place between them in future, therefore, we are executing and keeping with us this deed of partition. The property fall on the share of each party is shown in front of his name.... xxx xxx xxx xxx In this way we have partitioned over estate, the property fallen to the share of party have taken its possession and became the full owner thereof. Now nobody is concerned with the property of others. Out of us for the education and marriage purpose of party No. 2 to 5 and for the benefits of our family and for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maximum limit in Buldana District, the partition may have been in the teeth of Section (8) as it stood before substitution by Act XXI of 1975. No doubt, I may notice that she was gifted 60 and odd acres by her father and husband from out of the joint property by gift deed dated 20.1.1955. However, when the family partition took place, her right may continue. If the wife under the Hindu Law, when a partition is effected, was entitled to a share, the fact that she is not given any share, does raise a suspicion. The father got 32 and odd acres. The son is given 30 acres. Most importantly the daughters who had no right are seen given a total of 45 acres and 35 ares. The daughters together got 1½ times the share of the son! Any property, which went to the wife, would have been liable to be included in the account of the family for the purpose of determining the ceiling limit. It is no doubt true that there was no concept of family unit at that time but family as a person was subject to the ceiling limit. I have noticed the age of both Appellants Nos. 1 and 2 before us. They were 14 years and 11 years, respectively. The son, in fact, was merely 4 years old and the youngest da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have gifted the property to his two daughters i.e. Shakuntala and Durga but that too would not have mattered till the time the said daughters continued to be part of his family. It is submitted that the said observation clearly goes beyond the intention and nature behind the said transfer which, was merely a partition in the lines of a family settlement. By no yardstick can the circumstances be treated as either legal or natural. I may also notice that in the context of a family arrangement a Bench of 4 learned Judges in the decision reported in Potti Lakshmi Perumallu v. Potti Krishnavenamma AIR 1965 SC 825, inter alia, held as follows: 7. No doubt, a family arrangement which is for the benefit of the family generally can be enforced in a Court of law. But before the court would do so it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. It is quite clear that there is complete absence of evidence to show that there was such an occasion or the arrangement indicated in the will was acted upon. 131. I would also think that no acceptable reasons are forthcoming as occasion warranting such a partition apart from its illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssly opens the doors to a finding of it being sham. Ordinarily, in the case of sham transaction its terms deceptively disguise the underlying truth. The task become uphill when the transaction appears natural, to prove it to be a sham transaction. But when the transaction itself is unnatural, the task of the court is made lighter. 135. It is true that there is no express pleading in the cross objection that the transaction is sham and that Vithaldas continued to hold the land as on 2.10.1975. In Uttar Chand (supra), this Court, in fact, has pointed out to the lack of pleading to support the finding that transaction involved in the said case was a collusive one. In fact, it may be noticed that under the Act what is contemplated is filing a return by the person or family unit having surplus land followed by an inquiry Under Section 14 read with Section 18 and the declaration Under Section 21. The earlier proceedings which has taken place in this case has not been produced. Be that as it may, the State has filed cross objection in the appeal. The contents of the said cross objection in relation to the partition deed has also been noticed. 136. I would think that in the facts of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt purporting to be a deed of partition of certain agricultural land in support of their contention that they had acquired ownership over the disputed land long before the effective date under the provisions of the Maharashtra Agricultural Land (Ceilings on Holdings) Act, 1961. While a copy of the said document purporting to be a partition deed is on record and has been noticed by the authorities below it is not clear whether the alleged acquisition 2 of rights under the said document was ever reported to revenue authorities in terms of Sections 148 and 149 of the Maharashtra Land Revenue Code, 1966. It is also not clear as to whether the revenue authorities had upon receipt of such a report taken any steps to acknowledge the creation of the alleged rights in favour of the legal representatives of the deceased Appellant. The orders under challenge on the contrary suggest that the ownership of the land had continued in the name of the deceased in the revenue records despite the alleged execution of the partition deed. Confronted with this position Ms. Indu Malhotra, learned senior Counsel appearing for the Appellants seeks a short adjournment to take instruction and place on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1973-1974, the name of the occupant is shown as Vithaldas Jagannath for minor Shakuntala Bai Vithaldas. It is to be noted that going by the date of birth of Shakuntala Bai as noted by the Tribunal as on 03.11.1955, she became major on 03.11.1973, Still she is shown as a minor and her father is shown as occupant on her behalf. In regard to 17 acres and 23 guntas for 1974-1975 under the name of existing occupant, the following is noticed- 1) Vithaldas Jagannath, 2) Shakuntala Bai Vithaldas through the guardian Jagannath. Two features may be noted. 141. The first occupant is shown as the father. This is despite the fact that on 03.11.1973 itself Shakuntala Bai had even already become a major. For the earlier year it has been noticed that the entry was Vithaldas for Shakuntala Bai. For the year 1974-1975, the next feature to be noticed is Shakuntala Bai is to shown along with her father as an occupant. However, she is so shown through her guardian who is shown as her grandfather. Taking the matter forward for the next year namely 1975-1976, the occupant is shown as Shakuntala Bai Rama Prasad through guardian Jagannath. It is to be noted that Shakuntala Bai had much earlier b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. At least the writ petition is not produced to support such a case. It is necessary to notice that the finding regarding the partition deed and gift deed by the Tribunal impacted both Vithaldas and his wife on the one hand and also the elders daughters on the other hand [the latter as regards the partition deed]. The Ceiling Account of the family unit was determined taking into consideration the 31 and odd acres allotted to the elder daughters. Vithaldas would been affected in two different capacities. One as head of the family unit and the other as father of the elder daughters. 147. It is relevant to notice that under the Hindu Minority and Guardianship Act, 1956 Section 6 declares who is to be the natural guardian of a Hindu minor. It reads as under: 6. Natural guardians of a Hindu minor.- -The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in the case of a boy or an unmarried girl--the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding the order of the Tribunal, no appeal was filed by the elder daughters. 150. If indeed the elder daughters had acquired possession and rights under the partition deed in respect of an extent of more than 31 and odd acres of land in between themselves, it passes one's comprehension that they would not challenge the order which purported to deprive them of their rights. This conduct on the part of the parties would appear to lend assurance to the case of the State that the partition was not a genuine transaction but a sham and the property continued with Vithaldas in which case it would be property held by Vithaldas even on the commencement date namely 2.10.1975 rendering it liable to be included in the account of the family unit. He accordingly challenged the order of the Tribunal along with his wife who was separately aggrieved by the inclusion of the property found gifted to her. 151. It is to be noted that a writ petition is not a partition suit. In a partition suit, apart from the Plaintiff, the Defendants also stand in the shoes of a Plaintiff. Vithaldas passed away even when the appeal was pending in the High Court. Appeal was filed before this Court originally as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others were Respondents in the Writ Petition and Letter Patent Appeal. It may be true that a Respondent and even a person who is not a party can with leave prefer an appeal. But when they have not challenged the order of the Tribunal and even the judgment of the learned Single Judge and as the Vithaldas had fully contested the matter and in view of my finding that the properties allotted to the elder daughters, are liable to be found held by Vithaldas, I would not be inclined to interfere, particularly, as I have noted above when the perusal of the Special Leave Petition would reveal that Vithaldas (now deceased) through the LRs-the Petitioners is shown in the cause title. It must be remembered that the Petitioners upon the passing away of Vithaldas during the pendency of the Latter Patent Appeal were recorded as his legal representatives. 155. I would also, at any rate, in this regard, in this case invoke the principles laid down in Taherakhatoon (D) By L.Rs. v. Salambin Mohammad 1999 (2) SCC 635 and refuse to interfere. 156. I would think, therefore, the appeal must fail and it stands dismissed. ORDER In view of difference of opinions and the distinguishing judgments (Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
