TaxTMI 
TaxTMI 
2019 (8) TMI 1829
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....les, 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 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 hold....
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....de 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 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 ....
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....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 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 agricu....
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....s 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 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 Dur....
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....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 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 ....
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....ar, 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 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 constru....
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....er 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 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. ....
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....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, 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 part....
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....ion 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 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 ....
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....y 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 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 ....
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....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, 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? T....
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....tly 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 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 th....
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....ement, 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 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 aspe....
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....o 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 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 ....
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.... 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 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 Responden....
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.... 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 12½ 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, 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 indep....
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....ar 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. 66. Thereafter, the 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 Res....
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....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 could approach the Tribunal to make the 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 coul....
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....e 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", as contained in Section 4 of the Act, the property held by the elder 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 ....
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.... 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 creating the fiction (See Mancheri Puthusseri Ahmed and Ors. v. Kuthiravattam Estate Receiver (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 parti....
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....iling 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 ceiling area, or land which together with any other land already held by him will exceed in the total the ceiling area. Explanation.-In this section, "transfer" 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 Ag....
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....termined 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) above] exceeds the ceiling area on or before he commencement date or on any date thereafter (hereinafter referred to as the relevant date), then for the purpose of determining the ceiling area and the surplus land in respect of that holding, 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 ....
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.... 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 anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 or (b) any land is transferred in contravention of Section 8 then, in calculating the ceiling area which that person, or as the case may be, the family unit, is entitled to hold, the land so transferred 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 tha....
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....y 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 extent of share of each person in the land held by the family shall be taken into consideration for calculating the ceiling area in accordance with the provision of Section 3. Explanation.- For the purposes of this section, 'partition' means any division of land by act of parties made inter vivos, and includes also partition made by a decree or order of a court, tribunal or authority. 85. Section 12 falli....
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....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 others or held as a partner in a firm; and the extent of such share; (c) What is the total area of land held [by the holder on the commencement date? (d) whether any transfer or partition of land is made by the[holder] in contravention of Section 8 or 11 and if so, whether the land so transferred or partitioned should be considered or ignored] in calculating the ceil....
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....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: Provided that, he has filed the objection in the Maharashtra Revenue Tribunal within thirty days from the date of service on him of notice of the day fixed for hearing the appeal, or such further time as the Tribunal may see fit to allow and thereupon, the provisions of Order 41, Rule 22 of the First Schedule to the Code....
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....e 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 as Chapter II. This was done by way of substitution of the earlier Chapter, the Chapter contained in the Act prior to the amendment. 98. The following questions would arise for consideration by the Court: 1. Whether the authorities under the Act have the power to fin....
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....alculating 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 comprehended. Therefore, if a person is in possession as an occupant as on the appointed day, the extent of land so held by him, would be considered for the purpose of calculating the ceiling limit. Equally, if the person is in possession as lessee of the Government, he would inc....
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...., 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 case, though registered, was nominal. The object of the partition, it was contended, was to protect the interest of the minor sons against the father who was not even living with the family and was acting to the detriment of his sons. Though the deed showed apparently an equal distrib....
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....d 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 which, while on the one hand, furthers the object of the Statue, and equally importantly, is one, which the plain language of the Statute is capable of bearing, would persuade this Court to hold that the Collector, when in the course of an inquiry Under Section 18 of the Act, has before i....
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....ngly. 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 into force. Thereafter, no doubt, this Court went on to hold as follows: 3. ... Even the Act clearly exempts lands which may have been acquired or transferred prior to 4-8-1959. Sections 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be h....
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....esult 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 the sham transaction would be the other sharers. In the facts of this case, viz., the father, the wife and the son. 112. This is for the reason that it is implicit in the finding that in the transaction of sham that there is no effective transfer. The properties would continue to be held....
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.... 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 same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a ....
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....y 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 follows: 7. As observed in Mayne on Hindu Law and Usage (1953 Edn.) the joint and undivided family is the normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a join....
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....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 no vested right by birth and come in only as heirs to obstructed heritage (Sapratibandha Daya) cannot be coparceners, with the male members though, along with the males, or in exceptional cases by themselves, they are members of the undivided family as a corporate bo....
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....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 his discretion. But where the division takes place after the death of the father, the same texts which direct that the mother should receive a share equal to that of a son, direct that the mother should receive a share equal to that of a son, direct that the....
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..... 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. Reference has already been made to the observation of Vignaneswara in his commentary on slokas 175 and 176 of Yajnavalkya that it is the duty of a father to provide for his daughters as well as for his sons. The text of Yajnavalkya defining the share of the daug....
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....se 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 share given to the 1st Defendant was one-sixth of the whole. It was apparently considered by the donor that the property still left to the family would have time to increase before his son would have to support a family. He died undivided from his son, and apparently n....
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....oint 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 previously jointly held property. A wife of a Hindu while not a coparcener was one such person who was entitled to a share in the partition. But even when a partition took place, the daughter of a person was not a person who was entitled to any share. In order to appr....
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....n 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, however, attached a condition to the exercise of such unilateral power that the partition must be fair. Fairness cannot be present when it is made in complete derogation of the extant law relating to share of parties on ....
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....ent 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 validly made or not by Vithaldas to his elder daughters. It is to be noted that there is no such case expressly set up that what was the effected under the partition was a gift or that Vithaldas intende....
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....nded 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 said judgment the property was the separate property of the father which undoubtedly, he could gift. The gift under the Kerala Land Reforms Act had the effect of reducing the extent of land from the ac....
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....roceeded 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 12½ 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 1972-73 to 74-75 it is shown as jointly cultivated by Vithaldas and his daughter Durgadevi. S. No. 12 of Babulgaon is shown as cultivated during 1974-75 by Vithaldas alongwith his daughter Shakuntala. The ....
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....al 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 Registers (Preparation and Maintenance Rules)1971 have been produced. They show inter alia as follows: Therein, in the year 1973-74 under the column 'existing occupant', as regards Survey No. 14 ....
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....duced 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 made applicable Under Section 33 of the Act. In law it is true that if a cross objection is maintained, the person affected by an order in the cross objection must be on the party array. If he is n....
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....mpletely 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 could indeed question the inclusion of the lands allotted to his elder daughters in the account of the family unit. Vithaldas could support the partition deed but he could not challenge t....
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....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-Respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this....