Dwarka Prasad, J.
1. This writ petition has been filed against the order passed by the Board of Revenue for Rajasthan at Aimer dated Aug. 18, 1972 in a matter relating to the determination at surplus land under the Ceiling Law.
2. Gopalsingh petitioner was formerly the Jagirdar of the Jagir Amli Kalusingh in Bhilwara District of the State of Rajasthan which was resumed on August 23, 1954. The Sub-Divisional Officer. Shahpura initiated proceedings under Chapter III-B of the Rajasthan Tenancy Act, 1955 for determination, of the extent of ceiling area which could be lawfully continued to be held by Gooalsingh and his family members. The Sub-Divisional Officer, by his order dated Sentember 2, 1971 held that Gopalsingh had in Ms possession 97 standard acres of land in excess of the ceiling limit and directed that the excess land be resumed. An appeal preferred by the petitioner before the Revenue Appellate Authority. Udaipur was dismissed on Feb. 2, 1972. The petitioner preferred a revision petition before the Board of Revenue for Rajasthan, which was partly allowed on Aug. 18, 1972 to the extent of recognising the transfer made by the petitioner Gopalsingh on Sept. 3, 1959 in favour of Chanchalsingh in respect of land measuring 80 Bighas. The Board of Revenue conseauently remanded the case to the Sub-Divisional Officer. Shahoura. for reconsideration of the matter relating to 80 Bighas of land sold by the petitioner to Chanchalsingh. The remaining submissions made on behalf of the petitioner before the Board of Revenue were reiected.
3. It is not in dispute that 647 Bighas and 18 Biswas of land stood in the name of Gopalsinch petitioner while 23 Bighas and 8 Biswas of land were entered in the revenue record in the name of his wife. Thus. 671 Bighas and 6 Biswas of land were entered in the name of Gonalsingh and his wife, out of which 207 Bighas and 15 Biswas of land were transferred by the petitioner by means of various sale-deeds to different persons prior to December 31, 1969 and the sale of aforesaid land to the extent of 207 Bighas and 15 Biswas, was recognised by the Sub-Divisional Officer while determining the extent of excess land over and above the ceiling area applicable to the petitioner. Out of the remaining land measurine 463 Bighas 11 Biswas. the Board of Revenue also recognised the transfer of so Bighas of land, effected by the petitioner Gopal-singh in favour of Chanchalsing by a sale-deed dated Sept. 3, 1959. The Sub-Divisional Officer had refused to recognise the transfer of 80 Bifihas of land allegedly sold to Chanchalsingh, because of the fact that Chanchalsingh was the brother-in-law of Gopalsingh. However, the Board of Revenue, while considering the revision petition of Gopalsingh, held that the lower Court committed an illegality in not recognising the transfer of aforesaid land in favour of Chanchal-singh. Thus, when the transfer of 80 Bighas of land sold by the petitioner Gopalsingh to Chanchalsingh, by means of the sale-deed dated September 3, 1959 has been recognised, then 383 Biehas and 11 Biswas of land remained in the name of the petitioner Gopalsingh and has wife.
4. The Sub-Divisional Officer held that there were seven members in the family of Gopalsingh including himself, his wife and a son Bhagwantsingh and his wife and their minor sons and minor daughters and held that the family was entitled to 40 standard acres of land, in accordance with the provisions of Section 30-C of the Rajasthan Tenancy Act (hereinafter referred to as 'the Act').
5. An argument which was advanced before the Board of Revenue on behalf of the petitioner that the land standing in the name of the wire of Gopalsingh should hot be clubbed alone with his land was not accented by the Board and in my view rightly. The definition of 'familv' as given in Section 30-B of the Rajasthan Tenancy Act, is that a family consisted of a husband and wife, their children and grand-children, being dependent on them and the widowed mother of the husband, so dependent. Thus, the wife' constitutes a member of the' family alone with her husband and their dependent children and grandchildren. The land standing in the name of the wife of Gopalsingh was therefore, rightly clubbed along with the land standing in the name of Gopalsingh himself in accordance with the provisions, of Rule 17 (1) of the Rajasthan Tenancy (Fixation of Ceiling of Landi Government Rules, 1963 (hereinafter referred to as 'the Ceiling Rules') while calculating the extent of land for the purpose of determining the ceiling area applicable to the petitioner any land held individually by a member of the family shall be deemed to be held by the family, ac-cording to Rule 17 (1) of the Ceiling Rules and as such the land standing in the name of the wife of Gopalsingh must be deemed to be held by the family consisting of Gopalsingh and his wife and dependent children and grand-children.
6. Two other arguments, which were advanced by the petitioner before the Board of Revenue and were also advanced before me, namely, that the competent authority erred in not recognising the partition effected by Gopalsingh on Nov. 29, 1963 in respect of his three sons and also in refusing to recognise the partition effected by Gopalsingh on Sept. 22, 1965 in respect of 63 Bighas and 16 Biswas of land, in favour of Ms sister-in law Smt. Chandeli but they were not seriously pressed before me by the learned counsel for the petitioner. So far as the partition alleged to have been effected by Gopalsingh in respect of his three sons Daulatsingh, Surendrasingh and; Brijrajsingh by means of a registered document dated Nov. 29, 1963 is concerned, the Board of Revenue observed that a partition effected in accordance with the provisions of Section 53 of the Rajasthan Tenancy Act could alone be recognised for the purposes of s. 30-D of the Act and as the partition in favour of the three sons was not effected by Gopalsingh petitioner in accordance with the provisions of Section 53, of the Act, the same was not recognised. So far as the transfer made in favour of Smt. Chandeliji is concerned, in para, 11 of the writ petition it is admitted that she was separate from the petitioner and that she already held 18 Bighas and 9 Biswas of land in her khatedari. Smt. Ghandeliji was not entitled to any share at a partition, even if the land held by Gopalsingh petitioner may be considered to be a joint family property. Moreover the document dated Sept. 22, 1965 which is said to have been executed by Gopal-singh, effecting the transfer of 63. Biahas and 16 Biswas of land in favour of Smt. Ghandeliii by way of partition has not been produced before this Court. As Smt. Chandeliji was not entitled to a share by partition, the so-called partition^ effected in her favour on Sept. 22. 1955 by Gopalsingh was a bogus and sham transaction and the competent authority under the Act riehtly refused to recog-nise such transfer for the purposes of determination of ceiling area applicable to Gopalsingh.
7. Moreover, the sales made by Gopalsingh in favour of his three sons wore admittedly effected by registered sale deeds dated Oct. 26, 1970. much after the date specified in S, 30-DD and as such those transfers could not be lawfully recognised. Learned counsel for the petitioner submitted that' agreements to sell made in respect of such sales were executed by Gopalsingh petitioner in the vear 1969. It may however, be pointed out that mere agreements to sell do not create any right of interest in property sought to he sold, as has been made clear in Section 53 of the Transfer of Property Act. The petitioner Gopalsingh was not-authorised to transfer lands is any case after 30th Dec, 1909 - which is the date specified in Section 80DD and transfers made thereafter cannot be recognised for purposes of determination of ceiling area. Similarly, transfers made by Gopalsingh in favour of his strand-children have also not been recognised for identical reasons and no argument in respect thereof was made before me.
8. The principal argument, which was advanced by the learned counsel for the petitioner before this Court was that according to Rule 17 (2) read with Rule 17 14V of the Ceiling Rules the share of three maior sons of Goplsingh, who were not considered to be dependent upon him by the Sub-Divisional Officer, should not have been notionally separated and the total land standing in the name of Gopal-singh petitioner and his wife should have been reduced to the extent of the shares which the three major sons were entitled to have in the joint family property. It was artfued by the learned counsel for the petitioner that the land in question was ancestral property and the sons of 'the petitioner had a right to obtain a share therein by birth and while determining the ceiling area applicable to Gopalsingh, the share of his three maior sons, who were not dependent upon him, should have been excluded. Sub-rules (1), (3) and (4) of Rule 17, which are relevant for the purpose of deciding the question raised by the learned counsel for the petitioner, are as under :--
'17. fill For the purpose of determining the ceiling area, all the lands held individually, by any member of a family, or jointly by some or all of the members of a family, shall be deemed to be held by the family.
(3) In calculating the extent of land held by a family or by an individual person the share of the family or of the individual person in the land held by a firm, society or association of individuals (whether incorporated or not) or by a Company shall be taken into account.
(4) The share of a member of a family or of an individual person in the land held by a Hindu undivided family or the share of a family or of an individual in the land held by a firm, society or association of individual whether incorporated or not) or by a company shall be deemed to be the extent of land which in case such share is held on the appointed date would have been allotted to such a member, person or family had such land been partitioned or divided, as the case may be on such date: or which, in case such share is acquired in any manner whatsoever after the appointed date' would be allotted to such member, person or family if a partition or division were to take place on the date of determination of the ceiling area.'
9. It is not disputed before me that Gopalsingh is an ex-Jagirdar and the lands which have been entered in his name as khatedar tenant were allotted to him as khudkasht land and khatedari rights accrued to him in respect thereof on account of the provisions of Ss. 9 and 10 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and Section 13 of the Raiasthan Tenancy Act. Section 10 of the Jagir Resumption Act provides that from the date of resumption of any jagir land, any khudkasht land of a Jagirdar should be deamed to be held by the Jagirdar as a khatedar tenant thereof. An indentical provision has been made in Section 13 of the Rajasthan Tenancy Act which provides that on the resumption or abolition of an estate, the estate-holder holding khudkasht land shall become a khatedar tenant thereof and shall be entitled to all rights conferred upon and be subiect to all the liabilities imposed on a khatedar tenant by the Act. Thus, although after the resumption of the Jagir, the petitioner Gopalsingh became a khatedar tenant in respect of the khudkasht lands standing in his name. vet the said lands were not held by Gopalsingh in his individual capacity but they were held by him as a Karta of the Hindu undivided family.
10. In the State of U. P. v. Raj Kumar Rukmini Raman Brahma. AIR 1971 SC 1687: it was held by their Lordships of the Supreme Court that an estate which is impartible by custom cannot be said to be the separate and exclusive Property of the holder of the estate. If the holder has got the estate as an ancestral estate and succeeded to it by the rule of primogeniture, it would form part of the joint estate of the Hindu undivided family. Their Lordships observed as under in the aforesaid case (Para 8) :--
'It must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the individed Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition: (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of imcartibi-lity as was laid down by the Privy Council in the case of Rani Sartai Kuari v. Deorai Kuari (1887-1888) 15 (1887-1888) 15 Ind APP 51 (PC) and the First Pittapur case (1899)) 26 Ind App 83 (PC). The right of maintenance and the right of survivorship, however still remain and it is by reference to these rights that the property, though impartible has in the eve of law to be regarded as joint family property.'
11. Thus, if the impartible character of the property was lost on account of the resumption of jagir then the property would still bear the character of a joint family property. A smilar matter was considered by a division bench of this Court in Thakur Gopalsingh v. Commr. of Wealth-tax, 1973 WLN 14: (1973 Tax LR 1127) wherein a Question about the nature and character of the compensation received by the ex-Jagirdar upon the abolition and resumption of his Jasir arose for consideration. Their Lordships held that the Jaeir was hereditary and ancestral property and the junior members of the family had ac-quired their rights and interest by birth, although only the right of succession by survivorship could be exercised, on account of the impartible nature of the jagir. But as the jagir was not the absolute property of the jagirdar it was a joint family property governed by the rule of primogeniture which belonged to the Hindu Undivided Family of the Jagirdar and when the jagir was resumed the compensation awarded in respect of such joint family property was not separate property of the ex-Jagirdar but was joint family property, because the character of the compensation could not be different from that of the jagir itself, in lieu of resumption of which the same was paid. The khudkasht land, which the ex-Jagirdar was allowed to retain on the resumption of his jagir and in which he acquired khatedari rights under Section 13 of the Rajasthan Tenancy Act. on the abolition and resumption of Jagir. must bear the same character as that of the jagir namely that the said land was Joint family property in the hands of the ex-Jagirdar. The Board of Revenue observed that there was nothing on the record to show that the petitioner's family was a joint Hindu family. I am unable to agree with the view taken by the learned member of the Board of Revenue in this respect. The very fact that the Jagir was an ancestral property and the jagirdar was holding the their as property of the Hindu undivided family with a rider that the members of the family could not get a partition effected because of the fact that by custom the jagir property was impartible in nature and was governed by the rule of primogeniture. However. since the jagir was resumed, the impartible character of the property was lost and the joint family property became subject to partition. So the co-sharers could exercise other rights as coparceners in the joint family property. The khudkasht land held by the jagirdar must, therefore, be held by him on behalf of and for the benefit of the joint Hindu family of which he was the Karta and although the ex-Jagirdar became the khatedar tenant in respect of such khudkasht land, yet the khatedari rights were held by him on behalf of the joint Hindu family of which he was the Karta. The junior members of the family were entitled to seek partition of the joint family property, namely the khudkasht land held in the name of Gopalsingh.
12. According to the admitted facts of the case. Gopalsingh petitioner had, 4 sons, namely. Bhagwantsingh, Daulat-singh, Surendrasingh and Brijraisingh, out of whom Bhagwantsingh remained with his father. His three other sons were as such entitled to their respective shares in the lands held by the Hindu undivided family and while determining the ceiling area applicable to Gopalsingh the extent of land which the three sons would have obtained, if a notional partition of the Hindu Undivided Family properties would have been effected on the appointed date, is liable to be excluded. A combined reading of Sub-rules (2) and (4) of Rule 17 go to show that while calculating the extent of land held by the 'family.' consisting of Gopalsingh. his wife and dependent children and grandchildren, the share of the members of the 'family' in the land held by the Hindu Undivided Family has to be taken into account. According to Sub-rule (4) such share shall be deemed to be the extent of land which would have fallen to the share of such member in case in Partition would have taken place on the appointed date. In this view of the matter, the remaining land measuring 383 bighas 11 bis was, standing in the name of Gopalsingh and his wife has to be divided into six shares, including the shares of Gopalsinsh, his wife and 4 sons. As the shares of 3 sons was liable to be excluded, who were not dependent and did not form part of his 'family', could not be taken into consideration while calculating the extent of land held by the 'family' of Gopalsingh. for determining the ceiling area applicable to such 'family'. The extent of area of land which would have fallen to the share of Gopalsingh, his wife and dependent son. Bhagwant Singh, could have been clubbed together under Rule 17 (1) for determining the ceiling area applicable to the 'family', of which Gopalsingh was the karta. Thus, after the exclusion of the shares of 3 sons of Gopalsingh, if a notional partition would have taken place on the appointed date, according to Rule 17 (4) of the Ceiling Rules, then only 191 bighas 15 1/2 biswas of land would be available for determining the ceiling area applicable to Gopalsingh. The Sub-Divisional Officer should now determine the ceiling area applicable to Gopalsingh in terms of standard acres in the light of the aforesaid observations and he should then determine the extent of the area of land which is held by Gopalsingh and his wife in excess of the ceiling limit and which was liable to be resumed in accordance with the provisions of Chapter III-B of the Raiasthan Tenancy Act and the Ceiling Rules.
13. The writ petition is partly allowed and the order passed by the Board of Revenue for Rajasthan dated Aug. 18, 1972 is set aside only to the extent indicated above. As the matter is very old. the Sub-Divisional Officer. Shah-Dura, is directed to decide the question of ceiling area applicable to Gopalsingh in terms of standard acres at an early date and then proceed to determine the land held by him in excess of the permissible ceiling area. Of course, it would be open to the petitioner to exercise his option after the final determination of the excess land is made. The parties are left to bear their own costs.