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Wasudeo Madhaorao Assarkar and anr. Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 961 of 1970
Judge
Reported inAIR1976Bom94; 1975MhLJ404
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 8; Hindu Law; Constitution of India - Articles 14, 19(1), 25, 31-B, 141 and 246
AppellantWasudeo Madhaorao Assarkar and anr.
RespondentThe State of Maharashtra
Appellant AdvocateS.N. Kherdekar, Adv.
Respondent AdvocateV.V. Naik, Hon. Asstt. to A.G.P.
Excerpt:
a) the case discussed the scope of section 8 of the maharashtra agricultural lands (ceiling on holdings) act, 1961 - the court ruled that the provision of section 8 of the act was limited to transfers or partitions of the kind stated in the explanation - if the transfer or partition was effected by act of the parties made inter vivos, then section 8 of the act was not attracted - thus, the cases of attachment and sale of property by due process of law or divisions pursuant to execution of decrees or orders were excluded.;b) the case debated on the addition of words in the interpretation of statutes - the court adjudged that while interpreting a prohibited clause, which gave rise to penal consequences, nothing more would be permissible to be added.;c) the case examined the binding effect.....order1. a dialectical debate having somewhat far reaching consequence upon the legislative dynamic and the statutory dictates as contained in the provisions of the maharashtra agricultural lands( ceiling on holdings) act. 1961 hereinafter called the act) is raised by the present petition.2. for the purpose of the present petition, the facts are few and are undisputed. petitioner no,. 1 is the father and petitioner no. 2 is his son. the joint hindu family of which petitioner no. 1 was the karta held agricultural lands to the extent of 157 acres 19 gunthas at different villages, all located in tahsil akot, district akola, for which under the act the ceiling area is 7800 acres. petitioner no.2 milind was born in the family on november 3, 1961 the family is governed by mitakshara hindu law......
Judgment:
ORDER

1. A dialectical debate having somewhat far reaching consequence upon the legislative dynamic and the statutory dictates as contained in the provisions of the Maharashtra Agricultural Lands( Ceiling on Holdings) Act. 1961 hereinafter called the act) is raised by the present petition.

2. For the purpose of the present petition, the facts are few and are undisputed. Petitioner No,. 1 is the father and petitioner No. 2 is his son. The joint Hindu family of which petitioner No. 1 was the Karta held agricultural lands to the extent of 157 acres 19 gunthas at different villages, all located in tahsil Akot, district Akola, for which under The Act the ceiling area is 7800 acres. Petitioner No.2 Milind was born in the family on November 3, 1961 The family is governed by Mitakshara Hindu Law.

3. The Act came into force on January 26, 1962 and on that date the family of which the petitioner No. 1 was the Karta held land in excess of the ceiling area of 78 acres and was thus liable to file return under Section 12 of the Act. It appears that petitioner No. 1 filed a return on February 28, 1962 which was rejected as there was omission of field survey No. 12 and he was directed to file a fresh return. As there was fine imposed. proceedings appear to have gone before the Mah. Revenue Tribunal and the fine imposed on petitioner No. 1 was reduced to Rs. 10. Thereafter , fresh return was filed on August 11, 18967 . By that return , it was pointed out that petitioner No. 2 who was minor filed a civil suit No. 344 of 1965 in the Court of Civil Judge, Junior Division , Akot against his father i.e. the Karta of the family in which he prayed for partition. It was stated that eventually the said suit was decreed. The preliminary decree for partition was made by the Civil Judge, Junior Division . Akot on April 6, 1967 . By that decree , the Court declared that Milind, the minor son in the family, was entitled to get to get his share in the property shown in the plain Schedule A to H a d was entitled to get his share partitioned. The partition was direction to be made through Collector under Section 54 of the Code of Civil Procedure as those properties, involved the revenue paying estate. It appears from the preliminary decree that to this suit defendants Nos. 2 to 15 were joined on the allegations that the Karta of the family had sold survey No. 12 area 31 acres 37 gunthas to the defendants Nos. 2 to 15 which transaction was neither supported by legal necessity nor was for the benefit of the estate nor for the benefit of the estate nor for the benefit off the minor. It was alleged in the suit that the Karta was squandering the property for satisfying the immoral pleasures. The minor filed the suit by guardian who was his grandfather by name Vishwambhar Fadnaik. The preliminary decree shows that the strangers i.e. alienees like defendants Nos. 2,5, 14,1,5, 9, 10 ,3 4,6, and 7j were represented by counsel. It is only defendant Nos. 12 and 13 who remained exparte. It does not appear that defendant No. 1 i.e. the father was represented by any counsel. By that decree the field survey No. 12 which was transferred to defendants Nos. 2 to 15 , was directed to be put to the share of defendant No. 1 On September 15 , 1967 , it appears that eventually partition was effected of this revenue paying estate by Naib Tahsildar, Akot in Revenue Case NO. 2/22/67-88 of Khaparwadi Bk. As a result of this litigation, Milind the minor son got 78 acres of Land in his possession as his property. It is obvious that the suit was filed sometime in October 1965 and was decreed on March 23, 1967 signed by the learned Judge making the decree on April 6, 1967. Thus by filing the suit in 1965 , Milind purported to declare his unequivocal intention to separate from the Joint family and word out his right through court, which is eventually reflected in the decree made by the Court in his favour.

4. Now when this decree was put before the Ceiling authorities, whose orders are impugned in the present petition, they have ignored the same holding that it is a collusive decree. Some of the reasons that weighed for reaching that conclusion are that after the proceedings in ceiling were started against the Karta, the suit was filed; that to this suit mother was not joined as a party nor any share given to her to by the decree. It was merely, therefore, a device or a cloak to avoid the effect of the Act. Taking that vie about the making of the decree itself in favour of the minor, the authorities proceeded to hold that the family, which is a person under the Act, is a holder of 157 acres 19 gunthas would be the surplus land. Those orders are challenged by the present petition.

5. if therefore the partition that disrupted the joint family at the instance of the minor son in the family was validly brought about, there being no prohibition to make such partition under any of the provisions of the act, then the impugned decisions cannot be treated as validly made. The whole controversy rivets for this round the question whether the partition brought about by Milind by filing the civil suit in 1967 is within any of the statutory inhibitions of any of the provisions of the Act and whether the same can be ignored. If not, what are its effects under the provisions of the Act?

6. A brief resume of the relevant provision of the Act is necessary to exactly find out the answer to these questions. The Act came into force on January 26, 1962 and that is the appointed day referred to and as defined in the Act. By Section 3 throughout the State of Maharashtra ceiling on the maximum limit on the holding of agricultural land has been imposed from that date. c provides for prohibition on holding land d in excess of ceiling area by persons and that is required to be determined in the manner provided for in Chapter II. Section 4, therefore , is plenary. The word 'person ' includes a family (Section 2 (22)] and the holding has to be construed by finding out how must land such person was in actual possession as owner or as tenant of the land. Land is defined in Section 2(16). The term member of a family is used to mean in the case of a Hindu undivided family, a member thereof [Section 2 (20)]. Thus for the purpose of Section 4, for holding land would be prohibited to have land in excess of ceiling area as may be determined under Chapter II. That limit operates independently against the family as well as its individual member, if such member can be treated as an independent holder of agricultural lands. Neither the family nor the individual can therefore hold land in excess of the ceiling area as from January 26, 1962, the maximum limit having been fixed with reference to that date. That is the net result of Chapter II and declarations contained therein.

7. Then come the matters regarding alienations and acquisitions of Land and certain consequences that are dealt with and stated in Chapter II. It may be observed that, for the present controversy, the competing submission call for consideration of section 8, which deals with restrictions on transfers and partition. By Section 9 restrictions on acquisition of land in excess of ceiling area are imposed. Section 10 deals with consequences, Sub-Section (2) of Section 10 shows consequences against any person who comes to hold land on or after the appointed day in excess of ceiling area which he may come to hold as a result of acquisition by testamentary disposition, or devolution or death or by operation of law including by, or in execution of a decree or order of a Court having an authority and declares that the land in excess of the ceiling area shall be the surplus land with the said person. Sub-Section (3) of Section 10 divests the property if provisions of Section 9 are willfully contravened by the person concerned or property is obtained by collusive proceedings in any Court. Section 11 permits computation of ceiling area where land is converted into another class of land such as irrigated land because of facility of Government irrigation.

8. Chapter II and Chapter III lay out thus a self-contained scheme by which after the appointed day the maximum extent of land is fixed that can be held by a person , group of persons or family. Those who held land in excess on the appointed day are subjected to restrictions and those who come to hold land in excess are obliged to submit to the process of law. Penal consequences are attached to stated transactions that come within the express contemplation of Section 8 and 9 of the Act.

9. Section 8 reads as under

'8 No person who , on or after the appointed day, holds land in excess of the ceiling area, shall on or after that day transfer or partition any land until the land in excess of the ceiling is determined under the Act; Explanation -- In this section transfer means transfer by act of parties (whether by sale, gift , mortgage with possession, exchange, lease or any other disposition) made inter vivos: and partition means any division of land by act of parties made inter vivos'

10. The provision obviously is limited to transfers or effecting of partitions of the kind stated in the Explanation. By itself it imposed certain stated restrictions against persons holding land in excess of ceiling area from effecting transfers or partitions by personal acts passing interests in property inter vivos. That being so the normal rule of interpretation that such provisions would be strictly construed will be attracted. Logically while interpreting this prohibitive clause which gives rise to penal consequence nothing more would be permissible to be added. Both in cases of transfers as well of partitions which are division of lands the emphasis is on its mode. If the transfer and-/ or partition is effected by act of parties made inter vivos, then clearly Section 8 is answered. It follows that transfers or dispositions of other kinds or partitions by other process are not spoken to by any express terms, though the possibility of such alienations and acquisitions under law is not ruled out. To illustrate one may consider the case of attachment and sale of property by due process of law or divisions pursuant to execution of decrees or orders. This has to be understood in the context of the legislative purposes contained herein.

11. The present enactment is eminently intended to bring about agricultural reforms and make available the surplus land for its equitable distribution In the wake of the theory and tenants for evolving and unfolding the era of green revolution and with a view to facilitate and effectuate felt-changes in the field of agrarian society of the State which is the backbone of national economy. Legislature came out with several dynamic measures. These have taken form of powerful laws that control, regulate and evolve new relationship of man with his land. Attachment to land and limit of its ownership as well relational activity of landlord and tenant are all within the legislative ken. on the one hand tillers of the soil have been preferred as a class for much wanted statutory protection and on the other hand lust for land is sought to be limited, so as to have better economic holdings with bona fide cultivators and to achieve equitable distribution of land by this methodology. It would therefore not be out of place to take note of the companion legislation like Bombay Tenancy and agricultural Lands Act, 1948 and Bombay Tenancy and Agricultural Land (Vidharbha Region) Act, 1958, which regulate the relationship of landlord and tenant of agricultural lands and further the aim and objective to confer statutory ownership on the tillers of the land. There also, Legislatures have prohibited transfers and partitions by several measures. Provisions of Section 89 of 1958 Act (Vidharbha ) are illustrative to indicate that when legislature wanted to restrict the right with regard to all sorts of transfers, it did not mince words and made its intent clear so that the provisions of Sect. 89 of that Act would even affect sales or transfers in execution of decrees by civil Courts. However, the provisions in Section 8 of the present Act under consideration have not been made that comprehensive, and on the other hand appear to be circumspect. That only restricts the activity of transfers and partitions, which are effected by act of parties made inter vivos. Few of the reasons are not far to seek. It would be obvious that a person who is enjoined to file return under. Section 12 of the Act should not be allowed by his own act to transfer the property which is the subject -matter of consideration under the return. That , however, need not operate against the persons who are not holders of excess land and as such are not subject to file returns under Section 12. Those who acquire land in excess of the ceiling area after the appointed day will have to be dealt with separately. Such persons may be , who get the property by any other mode, except the one restricted by Section 8 or Section 9 of the Act. There is no prohibition available in any other section , except these two, imposed on acquisition of property. It is only in case of acquisition in contravention of Section 9 the penal consequences are indicated by Section 10 (3). In case of acquisitions covered by Section 10(2) , the person who acquires land in excess of ceiling, is obliged to file return, in other words, he is subjected to the process of the present legislation.

12. The legislative intent operative through Section 8 will have to be gathered by keeping in view the plain meaning of the words used by the legislature and its effect, the context of the several other legislation operating upon land and the aims and objects for which the enactment has been made a law. It is impermissible course for the Court to add any words to the provisions of the statute upon some plenary assumptions that the language of law lurches itself and does not reflect some unhidden intention. There is no warrant for any such proposition in the context of the present and other companion legislation's. Section 8 is not as if a provision bringing about total prohibition of transfers or partitions after the appointed day. Its object is to prohibit transfers and partitions effected by the parties inter vivos when once the appointed day is reached and such person is holder of excess land. Family, being the person who can hold land in excess of the ceiling area, would not be in a position to transfer or a partition property by act of parties made inter vivos. However, persons other than the family who are not holding land in excess of ceiling area would not be affected. It follows that holders of land below ceiling limit are not the objects of prohibition nor other modes that bring about transfers and partitions under law are prohibited. There can be various illustrative cases of such kind of the conceived is the one of process of execution of decrees. Persons who have obtained decrees against the family may attach landed property subject to law and put it to sale without any prohibition or persons who have obtained preliminary decrees for partition may bring about division of the property in spite of the provisions of Section 8 even after the appointed day. Similarly, the properties with the family may be subjected to the process of law of attachment and duress under the several provisions of other Acts, like for recovery of taxes or land revenue, or dues payable to State or to statutory bodies like co-operative societies or corporations. It is inconceivable that Legislature was not aware of all this modality that affects the property in the hand of the family. Such processes that do effect transfers as well as divisions of properties in given cases are not transfers or partitions brought out by the act of parties made inter vivos. There is therefore, no reason to include all these transfers and petitions within the prohibition of Section 8 of the present Act.

13. These clear considerations lead to following statutory statement under Section 8 viz-

(1) The prohibition under Section 8 of the Act is against the persons which term includes family as defined by the Act who are holders of land on the appointed a day or thereafter in excess of ceiling area and the prohibition would be operative till the surplus is determined. It is possible to treat family as separate entity apart from its constituent members.

(2) The prohibition is effective against transfer or partitions of landed property during the said period, brought about by act of parties made inter vivos.

(3) There is no prohibition against persons who did not hold land in excess of ceiling area.

(4)There is no prohibition operative upon transfers or partitions if these be effected by any other mode except the one prohibited under (2) above and

(5) It will be permissible for the State or the Ceiling Authorities to find out whether , though the transfer or partition is effected in the manner not expressly prohibited , was in fact a mere device or was a transaction, in truth and substance, brought about that should be treated as effected by act of parties made inter vivos upon evidence of collusion to defeat the purpose of the Act. This is not the part of the provision but is permissible extension found to further the ends of the statute by this Court (Pralhad 's case infra).

To the above effect and particularly of No. (5) above appears to me the decision rendered by the Division Bench of this Court while considering the impact of Section 8 upon partition effected through Court in the case of Pralhad Wasudeo v. State of Maharashtra, Special Civil Application No. 201 of 1967 decided on April 25, 1968 (1968 Revenue Rulings 48). Therein the Court ruled that the provisions of Section 8 did not disturb the right of the members of a joint family to effect a partition by resort to law Court: nor did the scheme of the Ceiling Act exclude effecting of partitions through modality of arbitration. Only because the partition through Court eventually took the form of a compromise decree, that cannot be decisive find out whether it was by act of parties made inter vivos within the meaning of the Explanation to Section 8. It was observed that

'Action at law is certainly a permissible mode of effecting division of property, especially , when the claims of the widows or minor s or person under disability are to be settled'

and once the partition takes place as a result of action in law Court, that partition cannot be interfered with so as to include property which has fallen to the share of other person in a partition validly made under the decree. The plead that such decrees are collusive and could be ignored for that reason, was treated to be an exception clearly be established. The instances of such a collusive decree having not been accepted and such exception applied is available in the case of Gajulal v. The State of Maharashtra , Special Civil Application No. 947 of 1970 decided on April 4, 1972 (Bom). by the learned single Judge of this Court. Once the decree came out under the cloud of collusion , this Court observed that it would be nothing but a partition effected by act of a parties made inter vivos and as such within the prohibition of Section 8.

14. The above decision rendered by the Division Bench binds me and that effectively determines that the resort to law Court by a member of the family to effect divisions or partitions of property is a recognized lawful activity notwithstanding the provisions of Section 8 of the Act. If eventually the partition is effected through the mediation of Court or arbitration, it cannot be treated as a partition made by act of parties inter vivos. It is only when the decree obtained by such modality is clearly shown to be collusive or can be treated as nothing but taken by the parties in some agreement or understanding so a s to defeat the process of law such partition would be treated as having been effected by act of parties made inter vivos for the purpose of Section 8 of the Act. This exception is not clearly enacted in the body of the section nor does emanate from the language of Section 8 itself. However, it appears that it was so carved out so as to effectuate the prohibition imposed by Section 8 of the Act and will have to be applied as a rule operating upon such modality. Undoubtedly, it is debatable as to whether it is the function of Court interpreting and applying law to extend the meaning of the words which take forms of definite provisos to substantive provisions of the given section. left to oneself. I would feel disinclined to follow that course which in effect turns the role of interpreter as to that of legislator. However that may be, that decision created an eminent exception to stamp out mischief by the persons subjected to ceiling of land, in an attempt to further the objects of Section 8 itself and binding as it is must be applied as was done by another learned single Judge of this Court in Gajulal's case S.C.A. No. 947 of 1970, D/-4-4-1972 (Bom). (Supra).

15. The ratio and rationale of the judgment in pralhad's case 1968 Rev Rul 48 (supra) is herein again questioned on behalf of the state on the authority of the decision of the Supreme Court in Raghunath Laxman Wani v. The State of Maharashtra : [1972]1SCR48 and the decision of this Court in the case of Asa ram Ananda Shinde v. State of Maharashtra1973 Mah LJ 278 . It was urged at the Bar that in fact Pralhad's case is overruled and the observations of the Supreme Court which are binding on all Courts would indicate that there is no scope for applying the decision of Pralhad's case any more. It was argued that the decision of Supreme Court shows the total permissible limit of fluctuations contemplated after January 26, 1962 with regard to ceiling imposed by the act. It was submitted that the provisions of Section 8 could not be so interpreted which will introduce uncertainty and varying fluctuations. Reliance is placed on the observations as contained in paragraphs 17 and 18 of the report (pages 2142-43) wherein the scheme of the Act has been referred to by the Supreme Court . Particular emphasis was added to the observations from those two paragraphs which are to the following effect;--

'The ceiling area so fixed would not be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of Section 3 and 4 no provision in the Act providing for the predetermination of the ceiling area of a family on variations in the number of its members'

'It is true that Section 12 does lay down an obligation on a person to furnish to the Collector a report containing particulars of al lands held by him if he has held at any time after August 4, 1959 but before the appointed day or has on or after the appointed day acquired or held or has come into possession of any land in excess of the ceiling area as envisaged in Section 10 (2) or whose lands are converted into any other class of lands as a result of the expiry of the periods or date specified in Section 2 (5) or whose land is converted into any other class for the reasons given in Section 11 and the Collector them has to hold an enquiry and declare his excess land under Section 21. But these are the only cases contemplated where there would have to be a reappraisal of the ceiling area, otherwise the Act, as aforesaid, visualizes the ceiling area of every person with reference to the conditions prevailing on and the land held by him as on the appointed day. Such a construction appears to be borne out by the provisions of Sections 3 and 4 as also of Section 8 and 9 of the Act'

It was further observed that except for the cases contemplated by Section 12, the scheme of the statute was that the ceiling area was to be ascertained with reference to the state of affairs existing on the appointed day.

16. The controversy in Raghunath Laxman Wani's case, : [1972]1SCR48 arose because of the debate regarding the number of person having been born in the family had increased after the appointed day and the Revenue Tribunal had taken the view that the children born in the family after the appointed day could not be taken into account for determining the ceiling area to which the family would be entitled . The scheme of the Act, therefore, was being examined on the basis that a family held land in excess of the ceiling area of such family could be allowed to fluctuate only because persons are born after the appointed day in the family. The ration of the division is clearly to lay down that the deaths or the births in a family will be of no avail while determining the ceiling area qua the family, who is a person subjected to the provisions of Sections 3 and 4 since on and from the appointed day. That is also the view reiterated by this Court , in this case of Asaram Ananda Shinde 1973 Mah LJ 278 . The questions of transfer and acquisitions of property by the family as such was not clearly in issue nor the dissolution of the status of the family and its effect on its property or its divisions. Chronologically though the Supreme Court decided Raghunath Laxman Wani's case : [1972]1SCR48 in August, 1971 and though the decision of this Court that was rendered against the State in Pralhad's case 1968 R R 48 in 1968 was available in that regard, it does not appear that any submission was made before the Supreme Court as to the correctness of that decision. Undoubtedly even an observation of the Supreme Court being in the nature of obiter dicta is binding on this Court. But every decision of a case has to be understood in the context from the ratio or from obiter dicta are not the part of ration nor of dicta.

17. No doubt Sections 8 and 9 of the act have been referred to an permissible fluctuations indicated under Section 10 (2) and Section 11 by that case in cases of persons who are ;subject to proceedings but that was all for deciding the controversy as to whether a family which continued as such, could claim benefit because of birth of an additional member in the family after the appointed day. Raghunath Laxman Wani's case : [1972]1SCR48 was not a case where the family itself was disrupted, neither was it a case where the prohibition against transfers or partitions imposed by Section 8 or 9 were in issue because of any complaint against such transfer or partition. It is not possible therefore, to accept that Pralhad's case 1968n R R 48 has been impliedly overruled by these observations in the decision of the Supreme Court in Raghunath Laxman Wani's case.

18. It was also urged that Pralhad's case 1968 Rev Rul 48 was not correctly decided as that opens up floodgates and exposes loopholes and permits avoidance of the very basic purpose of imposing ceiling on holdings of agricultural land. An apprehension was expressed that persons would get involved themselves in law suits and actions so as to avoid the present law and the provisions would be rendered nugatory. Law Courts must therefore interpret and apply the provisions to stamp out all such mischief. It was submitted that matter be reconsidered afresh.

19. Indeed such an appeal , in truth , lies to the Legislature and not to law Courts. Even otherwise also there are no good grounds to accept all these frequent submissions.

20. It is the person who is subjected to ceiling area with regard to holding of land. That persons may constitute a family or a group of individuals or as individual. In the case of Hindu undivided family or a Hindu coparcenary several are the recognized lawful modes by which partition of the property could be effected other than the one by act of parties made inter vivos. If the coparcenary or a joint Hindu family by its own act or by agreement of all those who constitute such a family or coparcenary brings about a partition, it appears, then alone the Legislature intended to ignore such act of partition and its effect. The word Partition means division. That may be brought about by act of parties and interest transferred inter vivos. In a given case, however, without the volition of the parties partition would be effectively brought out.

21. Further the process of partition postulates under Hindu Law bringing about of a severance of joint status and it is a matter of individual volition of a member of such coparcenary. All that is required for bringing about such partition is to express unilateral and unequivocal intention to separate by one member for such Hindu joint family. A member of a joint Hindu family having made a definite declaration of his intention to separate himself from the family and to enjoy his share in severalty brings about his separation from the very status of jointness. His intention and declaration has to be made known to others who are affected by the same. The process of such manifestation of intention may vary and would depend on the circumstances of each case. (See Raghvamma v. Chenchamma : [1964]2SCR933 : Puttrangamma v. Rangamma; : [1968]3SCR119 and Section 325 of Mulla's Hindu Law (Fourteenth Edn)] The institution of a suit for such partition tantamount to a declaration of definite and unequivocal intimation of the intention to separate from the family and consequently there is severance of the status of the suitor from the date when the suit is instituted . In the case of a minor, the severance would be complete when the Court passes a preliminary decree for partition. It follows that when the suitor is a minor suing by a guardian, it will be for the Court to hold whether division is necessary in the interest of the minor and if a preliminary decree is made in such a suit, then the divided status of the minor would date back to the date of the institution of the suit (See Section 325- Mulla's Hindu Law. Fourteenth Edition, Page 412 and 413). Such individual act of an individual that affects the status as well the property of the family cannot be equated as the act of the family as such. In spite of the familiar resistance , such act may bring about partition according to law. Surely that is not inhibited.

22. Awareness of such modality of effecting partition recognized by Hindu Law -- this being a case of Hindus -- must be attributed to the Legislature. By moving the Court for effecting a severance from the family the process of partition ensues and results in effectuating changes in status followed by division of property which was till then joint family property. After such severance the joint family property. After such severance the joint family may stand fully dissolved and also the property would come to be held separately. The process would end by bringing about a result to have more persons holding in severalty their land in place in joint family which was and is an independents entity. Bringing about these results by recourse to law Court has not been expressly barred by the terms of the Explanation appended to Section 8 of the Act. It is only when the family is a joint family or a body of persons who are joint holders of properties bring about by their own act partitions and under it pass properties inter vivos the terms of Explanations are answered and Section 8 attracted.

23. There is undoubted difference between transfer and partition. but both can be reached by act of parties. acquisition under each of these should be separately considered so also its various means. In the context of the provisions of Section 8 under consideration , it must be presumed that Legislature contemplated that there could be partitions effected by act of parties made inter vivos and restructured those types of partitions.

24. What could be the modality of such partition can be illustrated by referring to the Supreme Court decision, though rendered under the provision Delhi Rent Control Acts, 1958. While considering the provisions of of that Act, question arose before the Supreme Court whether a share in property acquired within the meaning of Section 14 (6) of that Act and was as such an acquisition by transfer'. In the case of V.N. Sarain v. Ajit Kumar Poplai, : [1966]1SCR349 , the Court held that it could not be so.. As to the nature of partition the Court ruled that partition really mends that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of the partition it cannot be held that partition of an undivided Hindu family property must necessarily mean a transfer of the property to the individual coparceners. The Court went on to say:

'Community of interest and unity of possession are the essential attributes of coparcenary property, and so, the true effect of partition is that each coparcener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family . In other words, what happens at a partition is that in lieu of the property allotted to the individual coparceners they, in substance, renounce their right in respect of the other properties they get exclusive title to the properties allotted to them and as a consequence, they renounce their undefined right in respect of the rest of the property. The process of partition, therefore , involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severalty by them of the respective properties allotted to their shares'.(emphasis provided)

These observations as emphasized above are indicative of partitions brought about by act of parties wherein all the coparceners participate to bring about the result of transferring of joint enjoyment of the properties into enjoyment in severalty by each of them of the respective properties that come to the share of each. Such partition would clearly be the division of land by act of parties made inter vivos. However, when one coparcener having interest in the joint property or a person entitled to that interest is driven to the Court of law or is required to take action to bring about the result of a severance of status and division of property and partition is effected not by agreement the case should be distinguishable and would not be equivalent to a partition, effecting division of land by act of parties made inter vivos.

25. The net result of such method of disrupting the family and its status would be division of landed property and if that division is reached by the modes which are not prohibited, different considerations, of necessity, govern the acquisition and holding of such property. Undoubtedly, on the appointed day there may exist a person viz. Joint Hindu family, holding property in excess of ceiling area and subjected to the restriction placed by Section 8 in that it shall not bring about the result of partition and division of landed property. That by itself would not affect the independent right of the members constituting the coparcenary of joint Hindu family to carve out their individual property by other modes permissible under law. There is no indication that with the ceiling imposed on the joint Hindu family that independent right to bring about severance and division of property by lawful means as indicated above is taken away or put under eclipse. The right to bring about partition of the property by itself is an adjunct and indicia of joint property and its ownership is an independent proprietary right . By implication it cannot be treated as having been eroded. To eclipse it, there must be clear legislative words available in the statute itself. There is no reason, therefore, to imply something which is not expressly stated in the Explanation appended to Section 8 by the Legislature so as to freeze that right of a coparcener, as distinct from that of the coparcenary, to bring about partition of the e state by recourse to law. It follows that rights validly arising in favour of strangers to effect divisions through Court of such properties would also not stand defeated or foreclosed by that provision.

26. The result of such permissible partition as noted above, under or by the modality available at law not being expressly prohibited under Section 8 would be that in place of joint family, the initial person, there would either be pre-emption of persons who may be individuals or who may be different families holding the property by themselves. Their holding and estate thus having come into existence after the appointed day may answer the terms of sub-section (2) of Section 10 of the Act and will have to treated as such. It is noteworthy that even in the decision of Raghunath Laxman Wani's case : [1972]1SCR48 the observations of the Supreme court do take into account the permissible fluctuation contemplated by Section 10 (2) of the Act. Therefore, if as a result of a decree or order made by the Court or Tribunal or authority, and in execution of such decree or order of such authority , any person gets land which is in excess of ceiling area after the appointed day, there is ample indication in the Act to subject the rights of property of such person to the ceiling limit. That is indicative that every part of the statute can conveniently work even if it is held that partitions made otherwise than the one contemplated by Section 8 of the act are permissible and it is not, as if, that the purpose of the Act itself by such construction is frustrated . On the other hand, the terms is Section 10 (2) are clearly illustrative of postulations permitting acquisition of properties by modes mentioned therein. These will apply with greater emphasis for the Act treats family as an independent legal person, apart from its members and lays down computation of ceiling area differently depending upon the number of its members , the maximum limit being the two ceiling areas. That shows that the individual right of the person who constitute the body coparcenary, need not be treated as totally frozen in all cases once the appointed day is reached . In its own wisdom, it is only the partition effected by all those who constitute such joint family or by the family as such made to pass property inter vivos, the Legislature though, should be kept in restricted category. That may because such divisions privately reached are for all purposes and intent meant to defeat the statute, other modes being on the other hand having assurance of applying either equity , law or good conscience.

27. The provisions of Chapter IV too shed some light by the matters that arise and will have to be taken into account in the adjudication done by the Collector holding enquiry for the purpose of making declaration under Section 21. Section 14 gives power to Collector to hold enquiry. Section 18 statutorily raises certain issues and directs the Collector to find answers to those upon consideration of all relevant matters. A careful look at the statutory question posed for decision of the Collector upon enquiry indicates amongst others that he has to consider whether any transfer or partition of land is made by the person in contravention of Section 8, whether the land so transferred or partition should be considered in calculating the ceiling area under provisions of sub-section (1) of Section 10 (section 18 (d)] As well he has to consider whether any land has been acquired or possessed on or after that appointed day by transfer or by partition by such person Section 18 (e) and whether any land has been acquired on or after the appointed day by testamentary disposition, devolution on death or by operation of law [Section 18 (f) . Now among these, is the question that calls for consideration by clause (d) whether the person whose holding is being considered has effected partition in contravention of Section 8 and whether sub-section (1) of Section 10 should be resorted to. The emphasis in the statutory question is on the person who acts in contravention of Section 8 while effecting either the transfer or partition and not against transfer or partition and not against transfer or partition as such. That is in keeping with the terms of the Explanation appended to Section 3 which prohibits act of parties transferring property inter vivos. If the person was the family then the partition brought about by the family, or in other words, by act of all those who constituted that family would furnish answer to this query to find out and none other and upon that would depend whether sub-section (1) of the Section 10 should be applied. Questions at clauses (e) and (f) indicate that such person can acquire or come in possession of property even after the appointed day by transfer or by other modes of disposition, devolution on death or by operation of law, and those acquisition will have to be taken into account., In other words, these statutory questions. In other words , these statutory questions direct the Collector to take into account such acquisition with regard to persons who either on the appointed day . Then, thereafter are or become holders of land in excess of the ceiling area imposed by Section 4. Such persons may be individual or group of individuals or a family or a joint family as contemplated by law. This compulsive process of consideration of statutory issues would always require from time to time the consideration of the matter once any person. holds land on or after the appointed day in excess of the ceiling area as determined under Chapter II. There is thus no indication, except to the limited extent available in Explanation to Section 8, that the agricultural lands cannot be subjected to partition, though in the very nature of things partible estates are subject to partition and division under the law governing the rights of persons in those properties. As to why the legislature has not clamped down every other modality of effecting partitions and as to why it has limited that modality by the Explanation, to a particular type of partition, is not a question that calls for an answer from Court of law. It is for the Legislate to find out always appropriate modality to give effect to its own schemes.

28. This is enough to indicate that for all purposes Division Bench decision in Pralhad's case 1968 Rev Rul 48 (supra) is a binding good law and no reason exists to depart from its dictum.

29. Thus it was permissible course for Milind, who was a minor, to file a suit for partition . That was not prohibited at all. he being a minor , the position of law is that is only when the Court makes a preliminary decree in such a suit filed by the guardian, his joint status would stand determined and division would follow under the decree of the Court. The position of a minor and the decree made by the Court in his interest should ordinarily suffice to uphold its validity. If collusion has to be traced in cases of minor's property, surely that would call for clear proof. Evidence that would be sufficient to annul to ignore such decree made by Court in minor's favour will have to be searched. This much should be presumed that the Court acted in the interests of the minor and if it is an act of the Court, it is difficult to sanction, without anything more being on record to stamp and brand those actions as collusive. In given cases however clear and clinching circumstances may answer collusion. But because certain circumstances that agitate suspicion about the bona fides of the litigation would not be enough to nullify the effect of such decree made in accordance with law.

30. In the present case, as stated earlier, the minor sued by his grandfather and eventually the Court made a preliminary decree in his favour. In the suit inter alia there were strangers joined as parties, and there were allegations of moral turpitude and waste against the Karta of the joint family. There were similar allegations of frittering away of the property and thus jeopardizing the interest of the minor. The suit was not as if, between minor son and the father but as the decree indicates, there were strangers or alienees who were impleaded to that suit and they were facing the allegations that without any legal necessity and in a spree of wasteful a moral conduct the joint family property had been alienated. Under such circumstances, which are not taken into account by the ceiling authorities, it is difficult to accept that the preliminary decree made in favour of a minor coparcener by the Court should be dubbed as collusive. The fact that the mother was not joined as a party nor was given any share, nor the suit was defended by the father, would not be determinative that may raise a cloud of doubt. But doubt, however strong, may not resolve in undoing an act which must be presumed to be consciously done by the Court in the interest of the minor. it was therefore, not right for the ceiling authorities to hold that any collusion had been established in the present case. Collusion like any other matter can in a give case, be answered by circumstantial evidence forthcoming from events antecedent, surrounding and succeeding to the making or obtaining of a decree. But all that must be clear and no other probable inference be available. The authorities have clearly omitted to take into account that it was the Court which must be presumed to have acted in the interest of the minor that had made decree in the presence of the strangers like defendants Nos. 2 to 15 out of whom only two were absent and not represented by counsel. The finding that the partition in the suit of Milind was collusive is clearly erroneous and in fact is based on surmises and not on any definite evidence.

31. As a result of this Discussion, it will have to be held that joint family consisting of Wasudeo and Milind held on the appointed day 157 acres 19 gunthas of land and was thus bound to file the return. As a result of partition through Court which was a permissible mode, the joint family property ceased to be joint on October 13, 1965 i.e. the date of the institution of Civil Suit No. 344 of 1965 and on that Milind acquired by partition half the land and the other half was put to the share of defendant No. 1 Wasudeo including the property transferred to defendants Nos. 2 to 15 in that suit. Thus there came into existence two individual persons in place of the family. The half of 157 acres 19 gunthas being more that the ceiling area of 78 acres, both Milind and Wasudeo are liable to file returns under Section 12 of the Act, having got the property in severalty in 1967. The proceedings will have to be continued on the basis of this partition both against Wasudeo the petitioner No. 2 to find out the ceiling area which they are entitled to hold and the surplus, if any . For this purpose and for all other enquiries, the matter will l have to be remitted back by setting aside the impugned order which cannot be sustained because of the permissible partition which has been ignored.

32. There is yet another point that is raised by the present petition. It is contended that the provisions of the Act and particularly the provisions putting embargo on the right to partition the property which is a right according to the learned counsel, available because of the provisions of personal law, are all violative of the fundamental rights, particularly the rights guaranteed by Article 25 of Part III of the Constitution of India. it is further submitted that there was incompetency in the State Legislature to make the law which would affect the personal law of the citizen.

33. The first part of these submissions does not call for any consideration for the Act is under the protection of the constitution umbrella of 9th Schedule, item 34 read with an Article 31-B of the Constitution of India.

34. As to the second part, it is difficult to accept the contention that there is any inroad on personal law. it is suffice to observe that the law has been made to the impose the maximum limit on the ceiling of the holding of agricultural land in the State and to provide for acquisition and distribution of land held in excess of such area. That is the purpose and substance of the legislation. Only because a person happens to be propagating or following a particular religion, it cannot be said that his right to property is also a religious right. Law regarding property can always be subject of legislation. As far as present legislation is concerned, it is not in dispute that it was reserved for the assent of the President of India and the said assent has been accorded. Thus, there is no merit in the said submission, too. The State Legislature was fully competent to make laws regarding the land and only because certain right which were formerly enjoyed by a given mode and manner indicated by personal law are regulated or modified with regard to enjoyment and holding of land. it is not a legislation that puts any inroad on that law nor is a legislation that affects religious liberty. That submission too must fail.

35. In the result, therefore, the petition succeeds and is allowed. As indicated above, the matter will have to be remitted to the Special Deputy Collector, Akot, dealing with ceiling cases, to find out the ceiling area held by Wasudeo and Milind in severalty, He will proceed to determine that question on the basis that they got such property by partition in 1967. The petitioners are directed to appear before that authority on March 24, 1975 , and file their returns on the basis of their property that came to them in the partition. If separate returns have already been filed the Special Deputy Collector shall hold early enquiry as prescribed by law and make a declaration if necessary, under Section 21 of the Act.

36. Though the petition thus succeeds, there would be no orders as to costs, herein.

37. Petition allowed.


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