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Smt. Geeta Devi and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1164 of 1976
Judge
Reported in1979WLN(UC)19
AppellantSmt. Geeta Devi and ors.
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Excerpt:
.....succession act,1956, and under section 8 of the said act, the petitioners, being the daughters of ramakishan had also became entitled to share in the property of ramkishan. the order dated 31st march, 1976 passed by the addl. collector pali cannot, therefore, upheld.;the petitioners share in the said land could not be included in the agricultural holdings of respondent nos. 4 to 6 for the purpose of determination of surplus under the act. the order passed by the addl collector, pali, cannot be sustained for this reason also and must be quashed.;writ allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant..........filed affidavits wherein it was stated that the petitioners and respondents no 4 to 6 alongwith ramakishan were members of joint family and after -the death of rama kishan in 1959. all of them had inherited the lands of rama kishan. the sub-divisional officer, pali, by his order dated 19th december, 1975, determined that 316 bighas, 19 biswas of land out of 586 bighas, 19 biswas was surplus land on the view that 465 bighas and 8 biswas of land in khasara nos. 86 and 89 has been entered in the name of respondents no. 4 and 5 pukhraj and anandraj, sons of rama kishan on 18th sept 1959, the date on which rama kishan had died and. therefore, rama kishan and his heirs could not claim any right in the said 465 bighas, and 8 biswas of land. the s.do. included 36 bighas. 19 biswas of land.....
Judgment:

S.C. Agrawal, J.

1. In this writ petition filed under Articles 226 and 227 of the Constitution, the petitioners have prayed for the issue of a writ of certiorari to quash the order dated, 19th December, 1975 passed by the Sub-Divisional Officer, Pali in Ceiling Case No. 334 of 1975 and the order dated 31st March, 1976, passed by the Addl. Collector, Pali in Ceiling Appeal, No. 46 of 1976: The facts related to the filing of the writ petition are briefly, as under:

2. The petitioners are the daughters of the Rama Kishan and respondents Nos. 4 and 5 are the sons of the said Rama Kishan, whereas respondent No. 6 is the wife of Rama Kishan, Rama Kishan died on 18th September, 1959. At the time of his death 36 bighas and- 19 biswas of land in Khasra No. 85 was entered in the revenue records in the name of Rama Kishan and 550 bighas of land in Khasara Nos. 74,81, 86 87 add 89 were entered in the names of his sons. Pukhraj and Anandraj, respondents Nos. 4 and 5. The case of the petitioners is that all the aforesaid1 land belonged to Rarma Kishan and that 'Bapi Patta' in the said land had been issued in favour of Rama Kishan in Smt 2008 and on coming into force of the Rajasthan Tenancy Act, 1955, Rama Kishan became a Khatedar tenant in respect of all these lands under Section 15 of the said Act. After the death of Rama' Kishan, proceedings were initiated for determination of the surplus and under the Rajasthan Imposition. of Ceiling on Agricultural Holdings Act,1973 (hereinafter referred to as the Act) Notices under, Section 11, of the Act were issued on the persons in whose names the land was entered in the revenue records i. e. respondent No. 4 and 5 and draft statement under Section 12 was also served on those persons Neither any notice under Section 11, nor the draft statement under Section 12' were served on any of petitioners. Respondents No. 4 & 5 filed a reply to the notice and draft statement served on them and also filed affidavits wherein it was stated that the petitioners and respondents no 4 to 6 alongwith Ramakishan were members of joint family and after -the death of Rama Kishan in 1959. all of them had inherited the lands of Rama Kishan. The Sub-divisional Officer, Pali, by his order dated 19th December, 1975, determined that 316 bighas, 19 biswas of land out of 586 bighas, 19 biswas was surplus land on the view that 465 bighas and 8 biswas of land in Khasara Nos. 86 and 89 has been entered in the name of respondents No. 4 and 5 Pukhraj and Anandraj, sons of Rama Kishan on 18th Sept 1959, the date on which Rama Kishan had died and. therefore, Rama Kishan and his heirs could not claim any right in the said 465 bighas, and 8 Biswas of land. The S.DO. included 36 Bighas. 19 biswas of land which was entered in the name of Ramakishan at the time of his death also in the lands of respondents Nos. 4 and 5 and on that basis he determined the surplus area in possession of respondent Nos. 4 and 5. Aggrieved by the aforesaid order of the Sub-Divisional Officer, Pali, respondents nos,4 and 5 filed an appeal which was, disposed by the Addl. Collector, Pali, by his order dated 31 March, 1926. The Addl. Collector, partly allowed the said appeal and held that 181 bighas, 19 biswas of land was surplus area which was liable to be acquired. The Addl. Collector has proceeded on the basis that the lands belonged to the joint family of Rama Kishan and that inspite of the land being entered in the name of respondents Nos. 4 and 5,the sons of Rama Kishan, the rights of respondent No. 6 Smt. Surajkaur, the wife of Ramakishan, in the said lands were not extinguished and that the ceiling area has to be determined, after taking into consideration the share of respondent No. 6, also. The Addl. Collector held that in so far as the petitioners were concerned,, they were included in the unit of their mother Smt. Suraj 'Kaur and there was no basis for recognising their rights 'separately. Aggrieved by the aforesaid-order of the Addl. Collector, the petitioners have filed this writ petition.

3. In the writ petition, the petitioners have submitted that the entire 586 Bighas. and .19 biswas of land in Khasra Nos. 86, 89, 85, 71, 84 87 belonged to the joint family consisting of Ramakishan, his wife and children, including, the petitioners .and that- after the death of Ramakishan on 18th Dec. 1959, the petitioners became co-sharers in the said land by Virtue of Section 8 of the Hindu Succession Act, 1955. The petitioners have further submitted that they were entitled to be served with a notice under Section 11 of the Act as well as the drafted statement under Section 12 of the Act and that as a result of the failure on the part of respondent No. 2 to serve the notice and the draft statement the petitioners had been deprived of their valuable right to file objections against the same. The' petitioners have' submitted that the land falling in the share of each of the Successors' of Ramakishan was less than the ceiling area prescribed under the Act)and that no land could be declared as surplus land under the Act.

4. The writ petition has been (Contested by respondent No. 1 to 3 only. In the reply to the writ petition filed on their behalf it has been asserted that' as the petitioners Were not holding any land on 1st June, 1973, no notice was required to be given to them under Section 11 of the Act and the drat statement under Section 12, of the Act was also not required to be served on. the petitioners. It has been submitted that the, determination of ceiling area under the Act has to be made on the basis of entire is in the revenue' records and that according to the revenue records respondents Nos. 4 and 5 were independently holding 465 Bighas and 8 Biswas of land even during the life time of Ramakishan and that the possession of respondents Nos. 4 and 5 over 84 Bighas and l2 Biswas of land had been regularised by the Tehsildar, Pali on 17th April 1971 In the said reply it is stated that the decision of the Addl collector, Pali dated 31st March; 1976 is in contravention of the provisions of the Ceiling Law and that necessary action was being taken for reopening of the case under Section 15 (1) of the Act. The reply to the writ petition was filed on 8th November, 1977 but the learned Deputy Government Advocate has stated that no, action for reopening of the case under Section 15(1) of the Act has been taken as yet.

5. Thus from the pleadings, it appears that neither the petitioners nor respondents Nos. 1 to 3 are satisfied with order dated 31st March 1976 passed by the Addl. Collector, Pali.

6. In support of the writ petition, Shri J,P. Joshi, the learned counsel for the petitioners has Submitted that the inheritance to the estate of Ramakishan after his death on l8th September, 1959 and was governed by the provisions of the Hindu Succession Act, 1956 and that the petitioners who are the daughters of Ramakishan, are also entitled to a share in the agricultural lands of Ramakishan and that the Addl. Collector, having found that the lands belongs to joint family consisting of Ramakishan and. his children, erred in not taking into consideration the shares of the petitioners for the purpose of determining the surplus area.

7. The learned Deputy Government Advocate has not disputed that the petitioners can claim a share in 36 bighas and 19 biswas of land which was entered in the name of Ramakishan at the time of his death. The learned Dy. Govt. Advocate has submitted that the petitioners could not claim any share in the lands which were recorded in the names of Pukhraj and Anadraj on the date of the death of Ramakishan. The submission of the learned Dy. Govt. Advocate is that the lands which were recorded in the names of respondents Nos. 4 and 5 could not be regarded as the property of the joint family of Ramakishan and his children, and that the order of the Addl. Collector, Pali could not be interpreted to mean that the lands entered in the names of respondents No. 4 and 5 in the revenue records on 1st June, 1973 had been held by him to be the property of the joint family of Rama Kishan and his children.

8. From a perusal of the order of the Addl. Collector, Pali, it appears that he has placed reliance on the decision of the Board of Revenue reported in 1976 R R D. 14, wherein it has been laid down that a land which belongs to a joint family does not cease to be joint family property merely because it is recorded in the names of the sons after the death of Khatedar and the rights of the widow of the Khatedar in the said property are not extinguished as a result of the mutation. Although there is no definite finding by the Addl. Collector that the agricultural lands which are recorded in the names of respondents Pukhraj and Anandraj the sons of Rama Kishan, at the time of death of Ramakishan were part of the joint family property belonging to the joint family consisting of Ramakishan, his wife and his sons and daughters, the order of the Addl. Collector shows that he has proceeded on that assumption. If the order of the Addl. Collector is so construed then it must be held that the Addl. Collector was not justified in law in holding that respondents Nos. 4 to 6, viz. the sons and the wife Rama Kishan alone were entitled to a share in the agricultural lands in dispute and that the petitioners could not claim any independent right in the said lands. The Addl. Collector failed to note that Ramahishan had died on 18th Dec. 1959, i.e. after the enactment of the Hindu Succession Act, 1956, and under Section 8 of the Act, the petitioners, being the daughters of Rama Kishan had also become entitled to inherit the property of Rama Kishan. The order dated 31st March, 1976 passed by the Addl. Collector, Pali, cannot, therefore, upheld.

9. The order dated 31st March, 1976 passed by the Addl. Collector, Pali, suffers from one other infirmity. In so far as the 36 Bighas and 19 Biswas of land in Khasra No. 85 is concerned, there is no dispute that it was recorded in the name of Ramakishan in the revenue records at the time of his death and the petitioners are entitled to a share in the said land. The petitioners share in the said land could not be included in the agricultural holdings of respondent Nos. 4 to 6 for the purpose of determination of surplus land under the Act. The order passed by the Addl. Collector, Pali, cannot be sustained for this reason also and must be quashed.

10. While quashing the order dated 31st March, 1976 passed by the Addl, Collector, Pali, it may be observed that there has been no proper consideration of the question whether the lands which were recorded in the revenue records in the names of respondents No. 4 and 5 belonged to the joint family consisting of Ramakisan, his wife and his sons and daughters. It would be appropriate that the aforesaid question is duly considered by the Addl. Collector, Pali, after hearing the petitioners and respondents Nos. 4 to 6.

11. I would, therefore, allow the writ petition and set aside the order dated 31st March, 1976, passed by the Addl. Collector, Pali in Ceiling Appeal Case No. 46 of 1976. The Additional Collector, Pali will dispose of the said appeal after hearing the petitioners and respondents Nos. 4 to 6 and will determine the question as to whether the agricultural lands in Khasra Nos. 86, 89, 71, 84 and 87 which were recorded in names of respondents Nos. 4 and 5 on the date of death of Ramakishan were joint family properties belonging to Ramakishan, his wife and his sons and daughters and whether the petitioners are entitled to claim a share in the said lands. In the circumstances of the case, the parties are directed to bear their own costs in this writ petition.


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