(1). The petitioner No.1 Raj Gajendra Singh is the husband of thepetitioner No.2 and father of petitioner Nos. 3 to 5 and they are challenging the ordersdated 9.3.1977 (Annexure-G), 30.9.1977 (Annexure-H), 19.11.1985 (Annexure-P) and18.1.1986 (Annexure-Q) with the further submission that the land recorded in the nameof deceased Chandra Sen had devolved on the petitioner Nos. 1,3,4 and 5 and were,therefore, entitled to retain the area equal to 30 standard acres as separate units underthe Rajasthan Imposition of Agricultural Holdings Act, 1973 and the rules framedthereunder.
(2). Proceedings under Chapter III-B of the Rajasthan Tenancy Act and the rules were initiated against Raj Gajendra Singh in the year 1971 by the SDO, Kota. The SDO, Kola after hearing the petitioner had decided that in addition to Raj Gajendra Singh, his three younger brothers Kishan Singh, Chanchal Singh and Laxman Singh were to be considered as separate units for the purpose of ceiling and allowed 30 standard acres to each of them on the resumption of excess land by its order dated 10.5.1976. This order was challenged in appeal before the Revenue Appellate Authority, Kota and the case was remanded back to the SDO by the Revenue Appellate Authority on 4.8.1976. The SDO again decided the case on 9.3.1977 by maintaining the earlier order as passed on 7.5.1976. The order dated 9.3.1977 (Annexure-G) was again challenged before the Revenue Appellate Authority, Kola, the appeal, was rejected on 30.9.1977 vide Annexure-H. A revision was filed before the Board of Revenue which had also been dismissed on 19.11.1985 vide Annexure-P.
(3). The petitioner had submitted before the Board of Revenue that Jagir of Kunadi was an 'impartible' state in the erstwhile State of Kota and succession was governed by the rule of primogeniture. It was further submitted that the estate which was earlier held by Raja Chandra Sen had been relinquished in favour of the petitioner RAJ Gajendra Singh in July 1955 and he had become the sole owner/khatedar and, therefore, the SDO and the RAA had committed irregularity in accepting Kishan Singh, Chanchal Singh and Laxman Singh the brothers of petitioner No.1 as joint Khatedars or the land in dispute and the consequent mutations entered into by the Gram Panchayat Kunadi in favour of four brothers after the death of Raja Chandra Sen is also null and void. It was also the contention that the SDO, Kola had not enquired into the question of transfer of land in the revenue villages of Sarola and Dabar to the wife of the petitioner Ridhi Sidhi Kanwarji and his three brothers effected on 30.3.1959. It was also the contention that as a matter of fact the partition as effected mutually on 8.1.1965 had been wrongly not recognised in view of the decree passed on 4.12.1970.
(4). It was the case of the respondents that Jagir itself was resumed on 23.8.1954 and on resumption of Jagir, Jagirdar Raja Chandra Sen became khatedar of the land. The characteristics of 'impartible estate' and rule of primogeniture were lost after the resumption of Jagir and as such Raja Chandra Sen could not have transferred the entire land to Raj Gajendra Singh in July 1955 as it had become ancestral property on abolition of Jagir. It was the further contention that even the release deed executed by Raja Chandra Sen has not been acted upon which is a clear proof from number of mutations in favour of respondents entered into by the Panchayat in December 1964. It was held by the Board of Revenue that after resumption/abolition of Jagir, Raja Chandra Sen had become an ordinary citizen to be governed by the law of land prevalent at that lime in which rule of primogeniture of 'impartible estate' were neither applicable nor it had any place and thus on the death of Raja Chandra Sen on 28.12.1964, his four sons inherited the land in dispute as co-tenants and the Gram Panchayat committed no illegality in attesting the mutation accordingly. The so called partition by the family in a suit was a collusive partition decree after 30.12.1969 and it was not a valid transfer to be considered as per ceiling law.
(5). It was also observed by the Board of Revenue that the petitioner himself had shown five members of the family. The share of the two girls who are married could not be covered u/Sec. 30-DD of the Rajasthan Tenancy (Amendment) Act and the share of the petitioner Ridhi Sidhi Kumari wife of Raj Gajendra Singh was clubbed with the husband, therefore, the petitioner Raj Gajendra Singh had been rightly allowed 30 standard acres to be retained by him. The orders passed by the RAA and SDO were confirmed.
(6). With the above facts, the petitioners had challenged the impugned orders.
(7). A pedigree table right from Raj Bijai Singh has been reproduced in the writ petition, however, this pedigree table after the resumption of Jagir has no relevancy. However, it is admitted that Raja Chandra Sen was the eldest son of Bijai Singh who was ex-jagirdar of Kunadi who had succeeded Raj Bijai Singh, Raj Gajendra Singh was the eldest son of Raja Chandra Sen.
(8). Reply has been filed on behalf of respondent Nos. 5 to 8. It is denied that the rule of primaginature is applicable or was applicable after the death of Raj Chandra Sen and after the Jagir having been resumed in August 1954, the properly of Chandra Sen was to be distributed on his death amongst his all the coparceners.
(9). Non-petitioner No.9 has also filed separate written statement reiterating the contentions made by the other non- petitioners.
(10). The contention of the petitioner that the Jagir was impartible estate and the succession was governed by the rule of primogeniture has no merit in view of the judgment of this court. In Gopal Singh vs. State of Rajasthan & Ors. (1) wherein it was held that after resumption of Jagir, impartible character of properly is lost and joint Hindu Family properly became subject to partition and the Khudkasht land held by Jagirdar 'G' on behalf of joint Hindu family. Shares of independent sons of 'G' in such land should be excluded while determining the ceiling area applicable to 'G'.
(11). It was also so held by the Hon'ble Supreme Court in Anant Kibe & Ors. vs. Purushottam Rao & Ors. (2), it was held by the Hon'ble Supreme Court that the property, although was impartible, were always treated by members of the family as part of the joint family properties and the succession to the Inam was by the rule' of survivorship as modified by the rule of lineal primogeniture. The junior members were in joint enjoyment of the inam lands. The sole survivor of the eldest male line of the last holder became the inamdar and the karta of the joint Hindu family which included the appellants being his cousin brothers and aunt. The suit for partition was filed and a separate share was claimed. Impartible nature was pleaded by the holder of the properly as a defence in the suit. It was also pleaded that the succession was governed by the rule of primogeniture. It was held by the Supreme Court that the inam lands though 'impartible' were nevertheless joint family properties of the parties and its devolution was governed by the rule of survivorship as modified by the rule of lineal primogeniture. It was further observed that the combined effect of Section 158(1)(b) and 164 of the M.P. Land Revenue Code was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of Inam lands under the Jagir Manual of the Holkar State stood extinguished. The status of bhumiswami was accrued and conferment of such rights on the holder in respect of ancestral inam lands must necessarily ensure to the benefit of all the members of the joint family.
(12). Above said is the accepted and confirmed law. In the present case also after the death of Raj Chandra Sen, the Jagir land in khudkasht had become the joint Hindu property of his other sons as well i.e. Kishan, Chanchal and Las man Singh. The brothers of the petitioner No. 1 as joint Khatedar of the land in dispute and consequent mutations were rightly entered by the competent authorities in favour of four brothers after the death of original khatedar. The contention of the petitioner cannot be accepted that the whole of the land of Jagir had vested in him because of any relinquishment made by Raj Chandra Sen.
(13). As per the facts and as narrated in Annexure-G and H, the land measuring 359.17 standard acres were jointly owned by the petitioner, Kishan, Chanchal Singh and Laxman Singh in the villages Bavri Kheda, Kunadi, Sarola and Dabar, 120 standard acres of land falling in the share of all the co-sharers was allowed to be retained and the remaining was acquired as surplus. Raj Gajendra Singh, the petitioner, his wife Smt. Ridhi Sidhi Kumari, his daughters Kumari Savitri and Kumari Padmini and his son Rajendra Singh had filed an appeal which was decided vide Annexure-H alleging that after the death of Raj Gajendra Singh in the year 1964 all the property of Jagir became the absolute property of Raj Gajendra Singh and also for the partition which was decreed on 4.12.1970, be recognised and the mutual partition done by the parties amongst themselves be given effect to. It was held by the RAA (Annexure-H) that after resumption of Jagir, the property in question is governed by the law as prevailing at the time and, therefore, no fault can be found in holding that the estate was not impartible. The partition decree being not recognisable, transfer could not be held to be proper and, therefore, the order Annexure-G dated 9.3.1977 was held to be legal. This order Annexure-G was also confirmed by the Board of Revenue vide Annexure-P dated 19.11.1985. The land of the family of Raj Gajendra Singh along with his wife was also clubbed.
(14). In the case of V.N. Sarin vs. Ajit Kumar Poplai & Anr. (3), it was held that the partition of Hindu joint family was not a transfer within Section 14(6) of the Transfer of Properly Act. It was held as under:-
'Having regard to the basic character of joint Hindu family property, each coparcener has an antecedent title to the said properly though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners had subsisting title to the totality of the properly of the family jointly, that joint title is transformed by partition into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. As this is the true nature of a partition, the contention that partition of an undivided Hindu family property necessarily means transfer of the property to the individual coparceners cannot be accepted.'
'The object of Sec. 14(6) is to prevent transfers by landlords as a divice to enable the purchasers to evict the tenants from the premises let out to them. Where the right to evict a tenant could not be claimed by a landlord under Sec. 14(1)(e), the legislature thought that the landlord should not be permitted to create such a right by adopting the divice of transferring the premises to a purchaser who may be able to prove his own individual case under Sec. 14(1)(e).
Having regard to the object intended to be achieved by Sec. 14(6), it cannot be held that a person who acquired properly by partition can fall within the scope of its provision. In cases falling under Sec. 14(6), a person who had no title to the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. The position is entirely different in the case of a partition. It cannot, therefore, be held that allotment of one parcel of property to an individual coparcener as a result of partition is an acquisition of the property by transfer by the coparcener within the meaning of Section 14(6).'
(15). In Smt. Roop Raj Laxmi vs. State of Rajasthan & Ors. (4), after going through the scheme of the Act this court had held as under:
(i) The concept of the term 'Family' in chapter III-B is not to be connected with the term 'joint family' as known to be in Hindu Law.
(ii) Chapter III-B governs all persons irrespective of their religion or community.
(iii) The lands may be held by Hindus or persons belonging to other, religious and all of them are equally governed by the provisions of the Ceiling Law contained in Chapter III-B.
(IV) The concept of joint family is totally foreign to the personal laws of Muslim, Christians and other communities.
(v) Therefore, the expression 'family' used in part III cannot be equaled to or connote an undivided family as known to the Hindu Law or that after partition had taken place in respect of a 'Hindu Family'.
(vi) The term 'family' under Chapter-III does not treat the children or grand children, who are not dependent, as members of the 'family' for purposes of ceiling law.
(vii) Therefore, the circumstances that a partition has taken place disrupting the joint family consisting the father and minor sons has no relevance for determining and calculating total holdings of the persons.
(viii) The 'family' for the purpose of Ceiling Law in Part III is a separate unit consisting of the persons contained as defined in Part III is for the purpose of determination of excess of Ceiling area. Under definition of the 'family' contained in Section 30-B Part III of the old Ceiling Law a person, his wife, their children and grand children being dependent and widowed mother of the husband so dependent upon them would constitute 'family'.
It was further held in Roop Raj Laxmi's case (supra) that the provisions contained in Hindu Succession Act shall have no effect on the term 'family' contained in Chapter-Ill of the old Ceiling Law under the Tenancy Act in view of sub-section 2 of Section4 of the Hindu Succession Act, which section reads as under:-
'4(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixations of ceilings or for the devolution of tenancy rights in respect of such holdings.'
(16). It was further laid down that Rule 17(2) and 17(4) of the Rules of 1963 framed under the Rajasthan Land Ceiling Act do not contain any provision which runs counter to the definition 'family', rather they supplement the definition so as to include the share of land of such member who is a constituent of the family. While deciding a ceiling mailer under the old Ceiling law, the concept of 'family' contained in Section 30-B should not be treated as Hindu Undivided Family and this distinction must be kept in mind, and that the definition of the term 'family' given under the Act has to prevail and excess land has to be determined as per the said definition.
(17). As a matter of fact, in my opinion, the case of Roop Raj Laxmi (supra) is reiteration of the law as laid down by the Apex Court in the case of State of Maharashtra vs. Wasudeo & Anr. (5), (supra) wherein it was held that the paramountcy of Section 4 of the Land Ceiling Act is to prevail and it was further observed that the High Court had not taken any logical view to any of the provision that partition effected through court decree has the effect of diminishing surplus area by giving two separate units to the father and son respectively; the order of the High Court was not approved.
(18). Admittedly, the case of the petitioner is to be dealt with in accordance with the old law as has been held by the Full Bench of this court in Banshidhar & Ors. vs. State (6) and as per the provisions of Section 4 of the New Act, wherein it is mentioned that the ceiling area applicable to any person or family in accordance with Section A if exceeds to the ceiling area of such person or family in accordance with the provisions of law repealed in that case ceiling are applicable to such person or family will be the same as was under the provisions of the said repeated law.
(19). Division Bench of this court in Roopraj Laxmi's case (supra) and also in Amb Singh's case had laid down the principles that the scheme of the Act and Chapter-III B has been well explained in the case of Amb Singh and Ors. vs. SDO Bhinmal (7) holding that:-
'Section 30-D recognises only the transfer (i) by way of partition or (ii) in favour of a landless person upto 1.4.66. All other transfers made after 25.2.1958 according to this Section, are considered as the transfer calculated to defeat the provisions of Chapter III-B of the Rajasthan Tenancy Act and they cannot, therefore, be recognised or taken into consideration for determining the ceiling area.
Section 30-DD of the Act is further exception to Section 30-D and recognises only two types of transfers made in favour of agriculturist domiciled in Rajasthan, son or brother intending to take to the profession of agriculture, attained the age of majority and capable of cultivating the land personally. Section 30-DD does not recognise division of the land by way of partition. The division of land between the co-tenants or co- owners by way of partition for the purpose of coiling law under Section 30-D has been recognised upto the notified date only. The partition made between the co-tenants after 1.4.66 though valid, cannot be considered for the purpose of determining the ceiling area applicable to a person or a family. The object with which the ceiling law was enacted, the scheme of the Act and the construction of the provisions contained in Chapter III-B clearly indicate that a partition made after April 1, 1966 cannot be considered or recognised for the purpose of determination of the ceiling area of a person under Section 30-C read with Section 30- E of the Act. The crucial date for consideration of the partition is the notified date, i.e. April 1, 1966 and the partition effected after this notified date is of no avail to the appellants either under Section 30-D or under Section 33-DD.'
''Section 30-DD does not deal with the partition. 'Partition' for the purpose of determination of the ceiling area is covered only under Section 30-D and the recognition given under the ceiling law for the purpose of determination of ceiling area is only to those partitions which have been effected on or prior to the notified date, i.e. 1.4.1966. All other transfers, as per Section 30-D, except by way of partition or in favour of a person who was a landless person before the said date and continues to be so till the date of transfer, are deemed to be the transfers calculating to defeat the provisions of Chapter III-B and cannot be recognised and taken into consideration. Section 30-DD recognises special type of transfers limiting to thirty standard acres, made by a person upto 31st day of December 1969.'
(20). From the above narrated facts, it is clear that (i) the family stood defined in Section 30-B of Chapter III of the Tenancy Act; (ii) in the definition of family as has been held by Roopraj Laxmi's case, there is no question of considering any aspect of ancestral properly or Joint Hindu property or even coparcenery property; (iii) the partition is not a transfer u/Sec. 30-DD; (iv) land holding of khatedar is to be seen as on notified date; (v) no benefit could be derived by the petitioner of the provisions of Rule 17(4). The rights and obligations have been created in the Act itself i.e. in the definition of the family.
(21). Rule 17(4) only supplements the definition of family for the purpose of declaring the ceiling and not that any substantial right has been created under the said rule for diminishing the ceiling owned by the Family. The true context of the Rule 17(4) can be for adopting the procedure for declaration of the ceiling that if there is joint Hindu family consisting of a member and if that member has a separate property as well, his share in the joint Hindu family is to be clubbed with the share i.e. the share of a member of a family or individual member in the land held by Hindu Undivided Family or share of a family 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 me case may be. The rule is to be read in furtherance of the aims of the Act viz-a-viz person or family and not for diminishing the surplus area of any khatedar or any family as he be holding on the notified date.
(22). Chapter III-B of the Tenancy Act, providing the Ceiling of the land holder, prescribes the ceiling area for a family consisting of five or less than five members to be 30 standard acres and in case the members of the family exceeds 5, the ceiling area in relation thereto was to be increased for each additional member by 5 standard acres, so as to that the total ceiling area applicable to such family does not exceed total 60 standard acres of land, meaning thereby that an individual or a family upto five members were entitled to retain 30 standard acres of land whereas each member of the family over and above was entitled to 5 standard acres of land subject to the total not exceeding 60 standard acres. The 'family' has been defined under Section 30-B i.e.. consisting of a husband and wife, their children and grand-children being dependent on them and the widowed mother of the husband so dependent. The intention of the legislature was to make a provision of 5 standard acres for each of the family member dependent upon such land holder to the maximum being 30 standard acres over and above the permissible area of the family total being 60 standard acres and if any of the land holder declares that any of his son or any person mentioned in the family is not dependent upon him or is not dependent on the land held by him, he was to be excluded from the definition of 'family', but by no stretch of imagination it can be said that any such non-dependent person was entitled to any extra share in the land holders or can be treated as a separate unit or that such 'not dependent' person can be deemed to have a separate share under the Hindu Law or Coparcenary Law under the Ceiling Law. The Succession Act, 1956 has taken care of this aspect in Section 4(2). It is immaterial to say that the land as entered on the notified date was either ancestral or not ancestral. The land of the khatedar was to be determined for the purpose of surplus area irrespective of the fact whether it is ancestral or not. No artificial definition or meaning can be attributed to the definition of family provided under the Act for the purpose of defeating the very purpose of declaration of ceiling. In case of Joint Hindu family property the same principle shall also be applicable. The law of ceiling does not discriminate so far the declaration of ceiling area is concerned between the properly held by Hindu Joint or otherwise or any other religion or community. The land ceilings were bound to be declared as permissible as provided u/Sec. 30-C after taking into the definition of family.
(23). In view of the above law and in view of the facts of the present case, it cannot be said that the authorities below had acted illegally in declaring the surplus area in the impugned order. Even though there is no evidence led that the property was ancestral, but even the ancestral nature of properly does not give any right of the deemed partition on 1.4.1966. This conception has been held to be proper by the Supreme Court in State of Maharashtra vs. Wasudev (supra).
(24). In view of the above narration of fact and also law laid down, no interference is called for in the impugned orders. The writ petition is dismissed.