K.D. Sharma, C. J.
1. This is an amended writ petition filed by Smt. Chandra Kanwar and Thakur Padamsingh under Articles 226 and 227 of the Constitution of India against the judgments of the Board of Revenue, Rajasthan, Ajmer, dated 1-2-1974 and 5-10-1974 by which the order of the Revenue Appellate Authority, Bikaner, dated 30-6-1971 was set aside and it was directed that the land belonging to Smt. Chandra Kanwar and Thakur Padamsingh (husband and wife) be clubbed together for the purposes of determination of Ceiling.
2. The relevant facts giving rise to this writ petition may be briefly stated as follows--Thakur Padam Singh is an Ex-Jagirdar of Karma was District Pali. Long before resumption of his Jagir, he gifted away three wells and agricultural lands attached there to measuring about 250 bighas to his wife Smt. Chandra Kanwar for maintenance vide Registered Gift Deed. Since then Smt. Chandra Kanwar has been in continuous possession of the gifted property and is enjoying the usufruct thereof without any intereference from the side of the donor. The Settlement Department also issued Parcha Khetoni and Parcha Lagan in Samwat Year 2006 and 2011 respectively in favour of Smt. Chandra Kanwar. Thereafter, the Jagir of Thakur Padamsingh was resumed under the Rajasthan Land Reforms & Resumption of Jagirs, Act, 1952, (here in after referred to as the 'Resumption of Jagirs Act) on 24-11-56, but as Smt, Chandra Kanwar was a transferee of the lands gifted away to her prior to 1-1-1949 the lands in her possession were treated as her own separate Jagir vide judgment of the Deputy Collector (Jagir) dated 29-5-1959 by virtue of Section 26A of the Resumption of Jagirs Act. Later on, Jagir of Smt. Chandra Kanwar was resumed on 15-9-1959 and compensation in respect of the said Jagir was paid separately to her, as judgment is evident from the copy of the Deputy Collector (Jagir), bali, marked Annexure-B. As 1 6 bighas of land was under personal cultivation, she was allowed to continue in possession of the same as Khatedar thereof. Out of the lands measuring 126 bighas Smt. Chandra Kanwar sold away 60 bighas of land on 26-12-1971 to Mst. Ramjivani, Jasoda and Mst Sarki vide registered sale deed. The said transfer was recognised as valid by the Sub-Divisional Officer, Jetaran, vide his order dated 30-7-74 in Ceiling Case No. 165 of 1975, The certified copy of which is marked as Annexure-C. As in the year 1960, the Rajasthan Tenancy Act was amended by Act. No. IV of 1960 and a new Chapter III-B was added for fixing the ceiling of holding, the Sub-Divisional Officer, Jetaran, in case, No. 27 of 1970 State v. Smt. Chandra Kanwar, on 28-5-1971 while determining the extent of (and of Thakur Padamsingh for the purposes of ceiling included the land of Smt Chandra Kanwar which was gifted to her in the year 1948. Aggrieved by this order of Sub-Divisional Officer, Jetaran, Thakur Padamsingh and Smt. Chandra Kanwar preferred an appeal in the Court of Revenue Appellate Authority, Bikaner. The Revenue Appellate Authority, Bikaner, heard the appeal and vide his judgment dated 13-6-1971came to a decision that the saparate holdings of Smt. Chandra Kanwar could not be clubbed with the holdings of Thakur Padamsingh and treated as the holding of the family for ascertaining excess land held by the family as a unit.
3. Aggrieved by this decision, the State of Rajasthan filed a revision petition in the Board of Revenue, Rajasthan, Ajmer, which was accepted by the Board vide its judgment dated 1-2-1974. The petitioners applied for review of the decision of the Board of Revenue dated 1-2-1974 but the review petition was dismissed on 5-10-1974. Hence, the petitioners have challenged both the aforesaid orders of the Board of Revenue by way of this amended writ petition as stated above on the grounds mentioned in para 21 and clauses (a) to (k) of the writ petion, and prayed for quashing the impugned orders and for issuing a direction to respondent no. I not to club the land gifted away to Smt. Chandra Kanwar with the land of her husband Thakur Padam Singh for the purposes of ascertaining excess lands held by the family as a unit under the Old Ceiling Law, and, for issuance of a further direction to respondent no. 1 not to interfere with the possession of Smt. Chandra Kanwar over her lands.
4. The respondents nos. 1 and 2 filed a written-reply to the writ petition, wherein it was alleged that the land gifted away to Smt. Chandra Kanwar for her pocket expenses gkFk [kpZ by her husband, remained under the control and management of Thakur Padamsingh and only the income accured from such land was given to his wife Smt. Chandra Kanwar for meet-in!?; her pocket expences. It was further alleged in the reply that the land gifted away to Smt. Chandra Kanwar by Shri (Thakur) Padamsingh was the part and parcel of the main Jagir and her land also stood resumed from the date of resumption of Jagir of her husband. It was, however, admitted that compensation was paid separately to Smt. Chandra Kanwar for resumption of her land, but separate payment of compensation had no relevancy according to respondents nos. 1 and 2. ft was further admitted in the reply that after resumptions of the Jagirs, Smt. Chandra Kanwar became Khatedar Tenant of the land which was gifted away to her but it was denied that the sale of some portion of her land in favour of Mst. Ramjiwani, Jasoda, and Mst. Sarki was valid On behalf of respondents nos. 1 and 2, it was further alleged in the reply that the Sub-Divisional Officer rightly determined the Ceiling area under Section 30-8 of Chapter III-B of the Rajasthan Tenancy Act, 1955, vide his order dated 28-5-1971 passed in Ceiling Case No. 189 of 1971 State v. Thakur Padamsingh and Ceiling Case No. 27/1970 State v. Chandra Kanwar, and admitted no error in declaring 57 bighas of land as surplus which the petitioners are bound to surrender in accordance with the provisions of Section 30-C of the Rajasthan Tenancy Act, (955. According to respondents nos. 1 and 2 Smt. Chandra Kanwar was rightly treated to be a member of the family of Thakur Padamsingh and her land was rightly clubbed together with the land of her husband for the purposes of ascertaining excess land held by the family as a unit. The respondents therefore, prayed that the impugned judgments of the Board of Revenue are not erroneous and the writ petition filed by the petitioners has no substance and is liable to be dismissed with costs.
5. I have carefully perused the record and heard Mr. B.L. Purohit and Mr. K.S. Rathore, learned counsel for the petitioner and Mr. Niazuddin Additional Government Advocate appearing for the respondents.
6. It has been streneously urged by Mr. B. L. Purohit, learned counsel for the petitioner that the holdings belonging to Smt. Chandra Kanwar, pensioner no. 1, could not legally be clubbed with the holdings of her husband Thakur Padamsingh, petitioner no. 2, merely because on the ground that husband and wife formed 'a family' as defined in Section 30-B of Chapter III-B of the Rajasthan Tenancy Act, 1955. It was further urged by Mr. Purohit that as the gifted lands were separately owned & were separately held in exclusive possession of Smt. Chandra Kanwar. These lands were not liable to be included under the Old Ceiling Act in the aggregate land holdings of Thakur Padamsingh for ascertainment of the surplus lands held by him. According to submission of Mr. Purohit, the land gifted away to Smt. Chandra Kanwer by her husband as back as in the year 1948 vide Registered Gift Deed became her 'Stridhan' over which her husband has no control during her life time and, therefore, her separate holdings are not liable to be clubbed together with the holdings of her husband because under the Hindu Law members of family having joint holding are allowed to have separate individual properties of their own. In support of his above contention, Mr. Purohit placed reliance on the following authorities: A.I.R. 1970 Bombay 251 Govind Ram Miha Mal is Chetumal Villardas , A.I.R. 1980 S.C. 1762 Ambika Prasad Mishra v. State of U P. and Ors. 1982 R.L. W. 38, Kanta Prasad v. The State of Rajasthan, and 1978 R.R.D. 192 Smt. Samand Kanwar v. State of Rajasthan.
7. Mr. Niazuddin, Additional Government Advocate appearing on behalf of Respondents, on the other hand relied upon the definitions of 'family' and 'person' in Section 30-B Chapter III-B of the Rajasthan Tenancy Act, 1955 and contended on their strength that the petitioners are husband and wife and as such members of a family and the phrase 'person' defined in Section 30-B includes Thakur Padam Singh and her wife Smt. Chandra Kanwar and so if they hold or retain lands in any capacity or under any tenure what so ever in excess of the ceiling area, the surplus land held by them can be acquired from them under the Old Ceiling Law contained Chapter 30-B of the Rajasthan Tenancy Act, 1955. In support of his above proposition he relied upon the following decisions of the Board of Revenue: 1971 R.R.D. 285 Smt. Nihal Kanwar v. State of Rajasthan, 1973 R.R D. 578 Bhoor Singh v. State of Rajasthan and 1974 R.R.D. 506 State v. Jabarsingh.
8. I have carefully considered the rival contentions mentioned above. At the out set I may observe that the Board of Revenue vide Judgment dated 1-2-1974 he set-aside the orders of Reveaue Appellate Authority, Bikaner, dated 30-6-1971 and directed that the land belonging to the petitioners should be clubbed together for the purposes of determination of Ceiling area on the following grounds:
(i) It has not been shown that the husband gifted certain lands under registered deed to his wife for maintenance purposes.
(ii) 'Nor it has been proved that land given to the wife was her 'Stridhan' under the provisions of the Hindu Law'.
(iii) 'After the resumption of Jagir estate reverted to the State including the land allowed by the husband to his wife for her maintenance purposes. The land allowed to the wife by a Jagirdar was not a separate entity but part and parcel of the main estate. In such circumstances allowance of separate amount of compensation to the Jagirdar husband and his wife is not of any relevance'.
(iv) 'There is special Ceiling Law in Rajasthan State and under Section 30-B (a) thereof it has been clearly defined that the 'family' shall consist of a husband and wife for the purposes of ceiling.
9. Upon perusal of the record, I may say that the grounds mentioned above, on which the decisions of the Board of Revenue dated 1-2-1974 and 5-10-1974 rest are, not well founded. There is a Registered deed on the record dated 6th November, 1948, whereby three wells and lands attached there to were gifted away by Shri Thakur Padam Singh, petitioner, to his wife Smt. Chandra Kanwar for her maintenance during her life time. It was clearly stated in the gift deed that the donee would have full control and possession over the wells and land attached there to and would enjoy their usufruct. An immovable property (which includes agricultural lands and wells also) given or gifted away to a Hindu-Female during coverture by her husband is 'Stridhan' according to all the Schools of Hindu Law including Mitakshara which governs this case. 'Stridhan' is divided into two classes-Saudakia and other kinds of Stridhan. Saudakia means a gift made through love and affection to a woman at, before, or after her marriage by her parents and their relations or by her husband and his relations. Non-Sautikia Stridhan means gifts to a woman from strangers and property acquired by mechanical arts etc. In the instant case, lands were gifted away to Smt. Chandra Kanwar after marriage by her husband Thakur Padam Singh for her maintenance. Hence such a gift can safely be classified as Saudakia gift. From a bare perusal of the judgment of the Assistant Collector, Jaitaran, dated 30-3-197), marked Annexure-D, it is obivious that Smt. Chandra Kanwar produced four witnesses before the Assistant Collector to prove that agricultural lands was given to her for her maintenance and according to Dariv Singh DW 1, she has been living separate from her husband Thakur Padam Singh. There was no reason to dis-believe the evidence of her witnesses, from which it is established that Smt. Chandra Kanwar is residing separate from her husband and is maintaining herself from usufruct of the land in dispute which is in her exclusive possession for or lieu of maintenance.
10. Consequently, the Board of Revenue committed an error in setting aside the orders of the Revenue Appellate Authority dated 30-6-1971 on the ground that it has not been shown that the husband gifted certain lands under registered deed to his wife for maintenance purpose nor it has been proved that the land given to the wife was her 'Stridhan' under the provisions of the Hindu Law.
11. As for the third ground relied upon by the Board of Revenue, it may be observed that the Deputy Collector (Jagir) has a final award holding Smt. Chandra Kanwar as independent Jagirdar and, accordingly, her Jagir was resumed separately on 15-9-1957, while Jagir of her husband Thakur Shri Padam Singh was separately resumed on 24 11. 1955 i.e. much before the resu mption of her Jagir. The Board of Revenue over looked this aspect of the case. After the resumption of her Jagir, the Settlement Department in its 'Parcha Lagan' entered the name of Smt Chandra Kanwar, as Khatedar of her separate holdings This entry showing as her Khatedar is made in 'Jamabandi' of Samwat Year 2027-2030. Hence, the observations of the Board of Revenue that the land allowed to wife of the Jagirdar was not a separate entity but part and parcel of the main estate, are not correct, because had it been so, there would not have been a separate resumption of the Jogir of Smt. Chandra Kanwar and separate amount of compensation would not have been given to her and the lands in her possession would not have been shown lands of her Khatedari in the revenue records.
12. Now the question arises as to whether the separate holdings of Smt. Chandra Kanwar can be clubbed with the land held by her husband Shri Thakur Padam Singh. According to the Board of Revenue, from the definition of the 'family' contained in clause (a) section 30-B of Chapter III-B of the Rajasthan Tenancy Act, 1955, it must be gathered that even if the wife holds lands independently, it will be deemed to held by the family and that the lands held by her shall be clubbed with the holdings held by her husband for the purposes of fixing the ceiling area.
13. In my opinion, it is necessary to examine the nature of the possession of the holdings by the wife, before coming to a conclusion whether the land held independently by the wife is permissible for clubbing together with that of her husband. In the instant case, the agricultural land recorded in the Khatedari of Smt. Chandra Kanwar independently in her own right and which is her 'Staridhan' being the part and parcel of the lands gifted away to her by her husband long before the Old Ceiling Law was even contemplated or enacted and which is sufficient to meet her expenses and to maintain her cannot be clubbed together with the land of her husband and treated as the holding of the family for the purposes of determining the ceiling area under the Old Ceiling Act. Reliance in this connection may be placed on a Division Bench authority of this Court in the case of Katna Pras d v. The State of Rajasthan, 1982 RLW at page 38, wherein their lordships observed as follows:
In our opinion, if an agricultural land is recorded in the Khatedari of a widow independently in her own right which is sufficient to maintain her, such land will not be clubbed with the land of her son and she can be treated as a separate unit for the purpose of Ceiling Law.
14. Reference in this connection may also be made to an authority Madan Lal Shankar Maliwal and Anr. v. State of Maharashtra and Anr. 0043/1970 : AIR1970Bom249 , wherein it was held that the holdings belonging to wife cannot be clubbed with the holdings of the husband merely on the presumption of the Hindu Law that husband and wife form a family and the registered deed of gift of certain land by husband to his wife cannot be ignored. It was further held in the said authority that under the Hindu Law as well as the Muslim and other laws, members of families having joint holdings are permitted to have and can own separate individual properties of their own ownership and these separate properties may include agricultural lands also.
15. In RRD. 1978, Smt. Samand Kanwar v. State of Rajasthan, page 192, the Board of Revenue itself held that if members of a family legally held title to separate land holdings, such separate holding cannot be clubbed together and treated as the holdings of the family. It was a further held that the transfers of land effected in favour of the sub-grantees by Rao Manohar Singh in 1954 were legally valid and having been made long before the Old Ceiling Law was enacted do not vitiate the objectives and the provisions of that law, and further, that the sub-granted lands are legally required to be treated as the agricultural holdings of the sub-grantees and not of the family, therefore, there is no valid reason not to recognise these transfers for purpposes of the Old Ceiling Law.
16. In Narayanrao Shamrao v. State of Maharastra, : AIR1971Bom158 , it was held that where family members are holding well defined shares in the land as tenants-in-common, land of each member alone is to be considered for determining the ceiling area.
17. Hence, separate holdings of Smt. Chandra Kanwar, who has been in exclusive and continuous possession thereof for her maintenance from the date of the Registered Gift-deed i.e. long before the Old Ceiling Law was even contemplated or enacted, cannot be clubbed with the holdings held by her husband for the purposes of fixing ceiling area. Smt. Chandra Kanwar was awarded separate compensation by the Deputy Jagir Commissioner also for her lands. This fact was indicative of her absolute control over the Gifted property i.e. agricultural lands over which she acquired Khatedari rights after the resumption of her Jagir as indicated above.
18. Looked from another aspect also the view taken or expressed by me is justified because the transfers which are not to be recognised for the purposes of determining Ceiling area have been specified in Section 30-D of Chapter-III-B of the Rajasthan Tenancy Act, 1955 and the transfer of agricultural lands by way of gift to Smt. Chandra Kanwar by her husband is not hit by the provisions of Section 30-D. It cannot be disputed that the gift deed in question had been made in the month of November, 1948 as is evident from the registered deed marked Annexure A. Thakur Padam Singh on that date could not even conceive of an enactment relating to ceiling on land holdings. Such transfer made long before the Old Ceiling Law came into force, cannot be deemed to be a transfer calculated to defeat the provisions of Chapter III-B of the Rajasthan Tenancy Act, 1955 and is clearly worth recognition and consideration for the purposes of determining the Ceiling area in relation to a person under Section 30-C.
19. For the foregoing reasons, I have no hesitation in holding that the transfer of lands by way of gift to Smt. Chandra Kanwar by her husband long before the Old Ceiling law was enacted is legally valid and do not violate the objectives and provisions of the Old Ceiling Law and the gifted away separate holding of Smt. Chandra Kanwar cannot be clubbed together with the holdings of her husband and cannot be treated as a single holding of the family, in connection with ascertainment of excess land held by the family as a unit.
20. Accordingly, the writ petition filed by the petitioners is accepted and the impugned orders of the board of Revenue, Rajasthan, at Ajmer dated 1-2-1974 and 5-10-1974 are set aside. In the circumstances of the case, no order as to costs.