1. A short question that arises for consideration in this writ petition relates to the interpretation of clause(ii) explanation 2 to Section 14 of the Bombay Village Panchayats Act. The question arose in an election petition filed under Section 15 by the first respondent challenging the election of the petitioners to the village panchayat of Mehrun, a village in Jalgaon district, inter alia on the ground that his own nomination paper was wrongly rejected.
2. The petitioners, respondent No. 1 and respondent Nos. 4 to 6 filed their nomination papers for the election held on March 28, 1984 for Ward No. 1 of village Mehrun. The nomination paper of the 1st respondent, who is a Muslim, was rejected on the ground that his father was in arrears of grampanchayat tax to the tune of Rs. 577/- and in spite of demand notice No. 282503 dated July 12, 1983 having been duly served on him, the tax remained in arrears till the last date of the filing of nomination papers, which was March 13, 1984. The elections were held and the petitioners were declared elected as members of the village panchayat of Mehrun representing Ward No. 1. The first respondent therefore filed an election petition under Section 15 of the Village Panchayats Act in the Court of the Second Joint Civil Judge, Junior Division, Jalgaon. At the hearing of this election petition the petitioners led some oral and documentary evidence to show that the first respondent was residing jointly alongwith his father and other members of the father's family in the same house, the taxes in respect of which were in arrears. Strong reliance was placed, in support of the contention that the first respondent was a member of the father's family, on the application Exhibit 47 submitted by the first respondent's father for getting a ration card mentioning therein that the first respondent was a member of his family. Reliance was also placed on the voters' list in which the first respondent was shown to be residing in the same house in which his father resided alongwith other members of his family. The learned trial Judge did not attach much significance to these documents and observed that it was natural to presume that the first respondent, who was a Muslim, had separated from his father on attaining majority. He also held that mere joint residence did not give rise to joint liability and that Clause (ii) of explanation 2 to Section 14 required something more than mere joint residence. He laid stress on the word 'custom' and proceeded to hold that joint residence which is not supported by 'custom' would not attract disqualification contemplated by Clause (h) of Section 14 read with Explanation 2 to the said provision. Consequently, he allowed the election petition on that ground alone, set aside the election of the petitioners and directed the returning officer to hold repoll after due compliance of the rules regarding holding of election by recording the name of the first respondent as a candidate. It is this order which is sought to be quashed by the petitioners.
3. As rightly held by the learned trial Judge the first respondent's father was in arrears of the panchayat taxes and that in spite of the writ of demand contemplated by sub-sec, (2) of Section 129 he failed to pay the taxes within three months from the date on which the amount of such tax or fee was demanded and the bill for that purpose was duly served on him. As a matter of fact the panchayat tax remained in arrears even till the last date of filing of nomination papers which as mentioned above was March 13, 1984. But it is nobody's case that the first respondent has interest in the property or that he is a joint owner thereof alongwith his father. It is true that he is one of the occupiers of the house in question and hence the tax in question was leviable on him also by virtue of Sub-section (2) of Section 124 of the Bombay Village Panchayats Act. But no bill nor a writ of demand contemplated by Sub-section (2) of Section 129 was served on the first respondent personally and, therefore, he cannot be said to have failed to pay tax within the meaning of Section 14(h) of the Village Panchayats Act.
4. Shri Divekar, the learned advocate for the petitioners contended that the finding of the trial Judge that the first respondent was not residing jointly with his father is, in view of the oral and documentary evidence placed on record by the petitioners, perverse. He also contended that to attract the disqualification contemplated by Section 14(h) read with Clause (2) of Explanation 2 to Section 14, joint residence at the material time would suffice and hence the word 'custom' which is used in second part of Clause (2) of Explanation 2 should be construed in that light. According to him joint estate or residence as a matter of fact would suffice. Even though there is some force in Shri Divekar's contention that the evidence on record unequivocally shows that the first respondent is residing alongwith his father for a number of years before the election, it is difficult to accept the proposition which he tried to propound that to attract the disqualification contemplated by second part of Clause (ii) of the second explanation to Section 14 mere joint residence would suffice. All persons residing together for sake of convenience cannot be held responsible for failure to pay tax by some person or persons with whom they are residing jointly.
5. Section 14(h) of the Bombay Village Panchayats Act lays down that no person shall be a member of the panchayat or continue as such who fails to pay any tax or fee due to the panchayat or the Zilla Parishad within three months from the date on which the amount of such tax or fee is demanded and a bill for the purpose is duly served on him. Explanation (2) which explains this clause reads as follows:
Explanation 2 - for the purpose of clause (h) (i) a person shall not be deemed to be disqualified if he has paid the amount of any tax or fee due, prior to the day prescribed for the nomination of candidate; ;
(ii) failure to pay any tax or fee due to the panchayat by a member of an undivided Hindu family, or by a person belonging to a group or unit, the members of which are by custom joint in estate or residence shall be deemed to disqualify all members of such undivided Hindu family or as the case may be all the members of such group or unit.
6. Therefore, in order to vicariously attract the disqualification contemplated by Section 14(h) for failure of the person, who is primarily responsible to pay property taxes, the person sought to be disqualified must either be a member of undivided Hindu family or must belong to a group or unit, members of which are by custom joint in estate or residence. Joint residence contemplated must be by virtue of custom prevailing among the members of the group or unit to which the person belongs. Mere joint residence, however long it may be, would not attract the mischief of this provision unless the circumstances placed on record are such that it can be inferred that joint residence was in pursuance to a custom prevailing among the members of the particular group or unit.
7. A somewhat identical expression appears in Sub-section (11) of Section 2 of the Maharashtra Agricultural Lands (Ceilings on Holdings) Act of 1961. This provision defines 'family' as including Hindu undivided family, and in the case of other persons, a 'group' or 'unit', the members of which are by custom or usage are joint in estate or possession or residence. This provision has been interpreted by this Court in a number of decisions.
8. In Mohammad Yusuf Haji Rais v. State of Maharashtra (1977) U.C.R. 163 three sons of one Khan Bahadur Amirsaheb challenged declaration of their surplus holdings made by the Sub Divisional Officer overruling their contention that they were holding lands separately under the family arrangement made by their father in the year 1944 and the partition affected all the property. This decision was confirmed by the Maharashtra Revenue Tribunal inter alia on the ground that as per the definition of 'family' given in Section 2(11) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, in the case of other groups or units the members of which are by custom or usage joint in estate or possession, or residence it includes all members of the group or unit. The Tribunal also held that the appellants and all other Muslims in the concerned part of the State are living jointly by custom or usage and hence they constitute a family. In the writ petition filed by the land holders challenging the aforesaid order, it was argued that in case of Muslims there cannot be any custom or usage of being joint in estate, possession or residence, as such family arrangements are unknown to Mohammedan law and under Shariyat Act no other rule can be applied to Muslims. Vaidya J. who heard the matter accepted this contention and observed as follows:
When the members of a Mohammedan family live in commensality they do not form a joint family in the sense in which that expression is used in the Hindu Law. Further, in the Mahomedan law, there is not as in the Hindu law any presumptions that the acquisition of several members of a family living and messing together are for the benefit of the tamily.
9. In Narayanmo Shamrao Deshmukh v. State of Maharashtra : AIR1971Bom158 Padhye. J. had occasion to interpret the phrase 'group or unit who by custom is joint in estate or possession or residence', though in different context. The question that fell for consideration of the learned Judge was whether members of a Hindu joint family having well defined shares in their own right conferred on them by the Hindu Succession Act are covered by the relevant clause quoted above. Answering the question in the negative the learned Judge observed as follows in para 11 of the report (at p. 162):
Even if the three persons in the first case and the two persons in the second case can be said to be other persons in the definition of the word 'family', they cannot be said to be members of a group or unit which by custom or usage are joint in estate or possession or residence. On getting their shares on the death of a member of the family, they may elect to enjoy their shares separately and also may have separate residence and it cannot be said that because for the sake of convenience they live together or enjoy the property jointly though in separate shares, they are doing so by any-custom or usage. In fact the latter part of the definition of the word 'family' contemplates some clans on tribes which by long custom or usage reside together or have joint estate or possession without anyone of them having any defined share in the property as in the case of a coparcenery where no coparcener can predicate his share while the coparcenery continues. This latter part is included in the definition to cover such groups or units which are akin to a Hindu coparcenery, but cannot be included in the first part of the definition.
10. A similar view of the matter was taken by Abhyankar J. in Mahadev v. Mehboobkhan (1969) Spl. C.A. No. 612 of 1967 decided by Abhyankar J. on January 1, 1969 (Unrep.)
11. The position of the so called Mohammedan joint family was stated thus, by the Division Bench of the Allahabad High Court in Shukrulla v. Mt. Zohra Bibi : AIR1932All512 : .
A so called Mohammedan joint family cannot be treated as a legal unit having a corporate existence and as such possessing property. For the determination of the rights of the individuals supposed to belong to it any analogy drawn from the joint Hindu family system is misleading.
12. In that case the learned Judges also observed (at p. 516):
In a so-called Mohammedan joint family there are many males and females who have no interest in the joint property and on the other hand there may be many who have an interest in the joint property, but are no part of the family e.g. married daughters of a deceased male co-owner. It is only in a loose sense that the property is said to belong to a joint Mohammedan family. The law does not recognise a Mohammedan joint family as a legal entity and has not provided rules applicable to the family as such.
13. It is therefore, crystal clear that in order to attract disqualification contemplated by Section 14(h) read with second part of Clause (ii) of the second explanation to Section 14 a person or defaulter must belong to a group or unit which is joint in estate or residence by virtue of custom.
14. A custom need not be general. It may be local or may be a family custom. But as the custom is derogatory of the general law, it must be strictly proved. In the present case the petitioners did not even aver in their written statement that the first respondent was residing with his father by virtue of custom prevailing in their family or amongst the Muslims residing in village Mehrun. The result, therefore, is that the order passed by the trial Judge must be upheld.
15. The petition is dismissed. Rule is discharged. As the petition involves a question of law, there shall not be any order as to costs.