SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vithaldas Jagannath Khatri (D) … vs The State Of Maharashtra Revenue … on 19 February, 2020

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6006 OF 2009

VITHALDAS JAGANNATH KHATRI (DEAD)
THROUGH SMT. SHAKUNTALA
ALIAS SUSHMI ORS. …Appellants

Versus

THE STATE OF MAHARASHTRA REVENUE
AND FOREST DEPARTMENT ORS. …Respondents

JUDGMENT

R.F. Nariman, J.

1. This appeal has come to us owing to a difference of opinion between

Sanjay Kishan Kaul, J. and K.M. Joseph, J. in a judgment dated

29.08.2019.

2. The brief facts necessary to appreciate the controversy in this appeal

are as follows: a partition deed dated 31.01.1970 (duly registered on

1.07.1970) was executed between late Shri Vithaldas Jagannath
Signature Not Verified

Digitally signed by
SUSHMA KUMARI
BAJAJ
Date: 2020.02.19
Khatri and his minor son and three minor daughters. In terms of this
17:29:55 IST
Reason:

1
document, the agricultural land of the Hindu Undivided Family (HUF)

is sought to be divided by mentioning that parties two to five – who are

the four children of Vithaldas – have to be provided expenses for their

education and marriage, which will be borne out of the separate

property allotted to each. An earlier partition deed was executed

between Vithaldas and his father Jagannath on 20.01.1955. Separate

provision was made in favour of the wife of Vithaldas by means of a

gift deed of land in her favour.

3. At this stage, it is necessary to set out certain provisions of ‘The

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961’

(hereinafter referred to as the “1961 Act”). Section 2(4) of the 1961 Act

defines ‘appointed day’ as meaning the day on which the 1961 Act

comes into force, which is 26.01.1962. Section 2(6A) defines

‘commencement date’ as meaning the 2nd day of October, 1975.

Section 2(11) defines ‘family’ as follows:

“(11) “family” includes, a Hindu undivided family,
and in the case of other persons, a group or unit, the
members of which by custom or usage, are joint in
estate or possession or residence;”

2
Section 2(11-A) defines ‘family unit’ as follows:

“(11-A) “family unit” means a family unit as
explained in section 4;”

4. By Section 3, no person or family unit shall, after the ‘commencement

date’, hold land in excess of the ceiling area, as is determined in the

manner provided. By Section 4(1), all land held by each member of a

family unit, whether jointly or separately, shall, for the purposes of

determining the ceiling area of the family unit, be deemed to be held

by the family unit. The explanation defines ‘family unit’ as follows:

“Explanation.- A “family unit” means,-

(a) a person and his spouse (or more than one
spouse) and their minor sons and minor unmarried
daughters, if any; or

(b) where any spouse is dead, the surviving spouse
or spouses, and the minor sons and minor
unmarried daughters; or

(c) where the spouses are dead, the minor sons and
minor unmarried daughters of such deceased
spouses.”

5. Section 5 then fixes the ceiling area. Section 8 deals with land held in

excess of the ceiling area on or after the commencement date. Section

9 is a restriction on acquisition of land in excess of the ceiling area on

or after the commencement date. Section 10 is important and is set

out hereunder:

3

“10. Consequences of certain transfers and
acquisitions of land.- (1) If –

(a) any person or a member of a family unit, after the
26th day of September, 1970 but before the
commencement date, transfers any land in
anticipation of or in order to avoid or defeat the
object of the Amending Act, 1972, or

(b) any land is transferred in contravention of section
8, then, in calculating the ceiling area which that
person, or as the case may be, the family unit, is
entitled to hold, the land so transferred shall be
taken into consideration, and the land exceeding the
ceiling area so calculated shall be deemed to be in
excess of the ceiling area for that holding,
notwithstanding that the land remaining with him or
with the family unit may not in fact be in excess of
the ceiling area.

If by reason of such transfer, the holding of a person,
or as the case may be, of the family unit is less than
the area so calculated to be in excess of the ceiling
area, then all the land of the person, or as the case
may be, the family unit shall be deemed to be
surplus land; and out of the land so transferred and
in possession of the transferee unless such land is
liable to forfeiture under the provisions of sub-
section (3), land to the extent of such deficiency
shall, subject to rules made in that behalf, also be
deemed to be surplus land, notwithstanding that the
holding of the transferee may not in fact be in excess
of the ceiling area.

Explanation.- For the purposes of clause (a)
‘transfer’ has the same meaning as in section 8.

All transfers made after the 26th day of September,
1970 but before the commencement date, shall be

4
deemed (unless the contrary is proved) to have
been made in anticipation of or in order to avoid or
defeat the object of the Amending Act, 1972.

Explanation.- For the purposes of this sub-section, a
transfer shall not be regarded as made on or before
26th September, 1970 if the document evidencing
the transfer is not registered on or before that date
or where it is registered after that date, it is not
presented for registration on or before the said date.

(2) If any land is possessed on or after the
commencement date by a person, or as the case
may be, a family unit in excess of the ceiling area or
if as a result of acquisition (by testamentary
disposition, or devolution on death, or by operation
of law) of any land on or after that date, the total area
of land held by any person, or as the case may be,
a family unit, exceeds the ceiling area, the land so in
excess shall be surplus land.

(3) Where land is acquired in wilful contravention of
section 9, then as a penalty therefore, the right, title
and interest of the person, or as the case may be,
the family unit or any member thereof in the land so
acquired or obtained shall, subject to the provisions
of Chapter IV, be forfeited, and shall vest without
any further assurance in the State Government:

Provided that, where such land is burdened with an
encumbrance, the Collector may, after holding such
inquiry as he thinks fit and after hearing the holder
and the person in whose favour the encumbrance is
made by him, direct that the right, title and interest
of the holder in some other land of the holder equal
in extent to the land acquired in wilful contravention
of section 9, shall be forfeited to Government.”

5
Section 11 states as follows:

“11. Restriction on partition.- Where any land held
by a family is partitioned after the 26th day of
September, 1970, the partition so made shall be
deemed (unless the contrary is proved) to have
been made in anticipation of or in order to avoid or
defeat the object of the Amending Act, 1972, and
shall accordingly be ignored, and any land covered
by such partition shall, for the purposes of this Act,
be deemed to be the land held by the family; and the
extent of share of each person in the land held by
the family shall be taken into consideration for
calculating the ceiling area in accordance with the
provisions of section 3.

Explanation.- For the purposes of this section,
‘partition’ means any division of land by act of parties
made inter vivos, and includes also partition made
by a decree or order of a court, tribunal or authority.”

6. Section 12 deals with the submission of returns by a person or a family

unit. Section 13 is important and states as follows:

“13. Failure to submit return.- (1) Where a person or
member of a family unit required by section 12 to
furnish a return,-

(a) fails without reasonable cause so to do, within
the time specified in that section, or

(b) furnishes a return which he knows, or has reason
to believe, to be false, he shall be liable to pay a
penalty which may extend in the former case to one
hundred rupees, and in the latter case to five
hundred rupees.

(2) Where the Collector has reason to believe that a

6
person or a member of a family unit required by
section 12 to furnish a return has, without
reasonable cause, failed so to do, or has submitted
a return which he knows or has reason to believe to
be false, the Collector shall issue a notice calling
upon such person or member to show cause within
fifteen days of the service thereof, why the penalty
provided by sub-section (1) should not be imposed
upon him. If the Collector, on considering the reply
or other cause shown, is satisfied that the person or
member has without reasonable cause failed to
submit the return within time, or has submitted a
return which he knew or had reason to believe to be
false, he may impose the penalty provided in the last
preceding sub-section and require him to submit a
true and correct return complete in all particulars,
within a period of fifteen days from the date of the
order.

(3) If the person or member fails to comply with the
order within the time so granted by the Collector,
then as a penalty for failure to furnish a return, or a
true and correct return complete in all particulars,
the right, title and interest in the land held by him or
as the case may be, by the family unit in excess of
the ceiling area shall, subject to the provision of this
Chapter, be forfeited to the State Government and
shall thereupon vest without further assurance in
that Government.”

Section 14(1) states as follows:

“14. Power of Collector to hold enquiry.- (1) As soon
as may be after the expiry of the period referred to
in section 12, or the further period referred to in sub-

section (2) of section 13, the Collector shall, either
suo motu whether or not a return had been filed or

7
on the basis of the returns submitted to him under
either of those sections, and such record as he may
consider it necessary to refer to, hold an enquiry in
respect of every person or family unit holding land
in excess of the ceiling area, and shall, subject to
the provisions of this Chapter, determine the surplus
land held by such person or family unit.”

Section 18 is important and is set out hereunder:

“18. Collector to consider certain matters.- On the
day fixed for hearing under section 14, or on any
other day or days to which the inquiry is adjourned,
the Collector shall, after hearing the holder and
other persons interested and who are present and
any evidence adduced, consider the following
matters, that is to say,-

(a) what is the total area of land which was held by
the holder on the 26th day of September, 1970;

(b) whether any land transferred between the period
from the 26th day of September, 1970 and the
commencement date, or any land partitioned after
the 26th day of September, 1970, should be
considered or ignored in calculating the ceiling area
as provided by sub-section (1) of section 10 or
section 11;

(bb) whether the holder has any share in the land
held by a family or held or operated by any co-
operative society or held jointly with others or held
as a partner in a firm; and the extent of such share;

(c) what is the total area of land held by the holder
on the commencement date?

8

(d) whether any transfer or partition of land is made
by the holder in contravention of section 8 or 11 and
if so, whether, the land so transferred or partitioned
should be considered or ignored in calculating the
ceiling area under the provisions of sub-section (1)
of section 10 or section 11?

(e) whether any land has been acquired or
possessed on or after the commencement date by
transfer or by partition?

(f) whether any land has been acquired on or after
the commencement date by testamentary
disposition, devolution on death or by operation of
law?

(g) what is the total area of land held at the time of
the enquiry, and what is the area of land which the
holder is entitled to hold?

(h) whether any land is held by the holder as tenant,
and if so, whether his landlord has a subsisting right
of resumption of the land for personal cultivation,
under the relevant tenancy law applicable thereto?

(i) whether any land held by the holder is to be
forfeited to Government under sub-section (3) of
section 10, or of section 13, or should be deemed to
be surplus land under any of the provisions of this
Act?

(j) whether the proposed retention of land by the
holder is in conformity with the provisions of section
16?

(k) which particular lands out of the total land held
by the holder should be delimited as surplus land?

9

(l) any other matter which, in the opinion of the
Collector, is necessary to be considered for the
purpose of calculating the ceiling area, and
delimiting any surplus land.”

Section 21(1) and 21(3) then state:

“21. Collector to make declaration regarding surplus
land etc., and consequences thereof.- (1) As soon
as may be after the Collector has considered the
matters referred to in section 18 and the questions,
if any, under sub-section (3) of section 20, he shall
make a declaration stating therein his decision on-

(a) the total area of land which the person or family
unit is entitled to hold as the ceiling area;

(b) the total area of land which is in excess of the
ceiling area;

(c) the name of the landlord to whom possession of
land is to be restored under section 19, and area
and particulars of such land;

(d) the area, description and full particulars of the
land which is delimited as surplus land;

(e) the area and particulars of land out of surplus
land, in respect of which the right, title and interest
of the person or family unit holding it is to be forfeited
to the State Government.

The Collector shall announce his declaration in the
presence of the holder and other persons interested
who are present at the time of such declaration.

xxx xxx xxx

(3) The declaration made under this section, subject
to the decision of the Maharashtra Revenue
Tribunal in appeal under section 33, or of the State
Government in revision under subsection (2) of

10
section 45, shall be final and conclusive, and shall
not be questioned in any suit or proceedings in any
court.”

7. Appeals are provided against the Collector’s orders and awards under

Section 33 of the 1961 Act. This again is an important provision and is

set out hereunder:

“33. Appeals.- (1) An appeal against an order or
award of the Collector shall lie to the Maharashtra
Revenue Tribunal in the following cases:-
(1) an order under sub-sections (2) and (3) of
section 13 not being an order under which a true
and correct return complete in all particulars is
required to be furnished;

(2) a declaration or any part thereof under section
21;

(2a) an order under section 21-A ;

(3) an award under section 25;

(4) an order refusing sanction to transfer or divide
land under section 29;

(5) an order of forfeiture under sub-section (3) of
section 29;

(6) an amendment of declaration or award under
section 37; and
(7) an order of summary eviction under section 40.

(1A) Any respondent, though he may not have
appealed from any part of the decision, order,
declaration or award, may not only support the
decision, order, declaration or award, as the case
may be, on any of the grounds decided against him,
but take cross-objection to the decision, order,
declaration or award which he could have taken by
way of an appeal:

11

Provided that, he has filed the objection in the
Maharashtra Revenue Tribunal within thirty days
from the date of service on him of notice of the day
fixed for hearing the appeal, or such further time as
the Tribunal may see fit to allow; and thereupon, the
provisions of Order 41, rule 22 of the First Schedule
to the Code of Civil Procedure, 1908, (V of 1908)
shall apply in relation to the cross-objection as they
apply under that rule.

(2) Every petition of appeal under sub-section (1),
shall be accompanied by a copy of the decision,
order, declaration or award, as the case maybe,
against which the appeal is made.

(3) In deciding such appeal, the Maharashtra
Revenue Tribunal shall exercise all the powers
which a Court has, and follow the same procedure
which a Court follows, in deciding appeals from the
decree or order of an original Court, under the Code
of Civil Procedure, 1908, (V of 1908).

Section 41 bars the jurisdiction of the Civil Court as follows:

“41. Bar of jurisdiction.- No Civil Court shall have
jurisdiction to settle, decide or deal with any
question which is by or under this Act required to be
settled, decided or dealt with by the Commissioner,
Collector, Tribunal, the officer authorised under
section 27, the Maharashtra Revenue Tribunal or
the State Government.

Explanation.- For the purpose of this section a Civil
Court shall include a Mamlatdar’s Court constituted
under the Mamlatdars’ Courts Act, 1906, (Bom. II of
1906).”

12
Section 44B excludes pleaders from appearance as follows:

“44B. Pleaders etc., excluded from appearance.-
Notwithstanding anything contained in this Act or
any law for the time being in force, no pleader shall
be entitled to appear on behalf of any party in any
proceedings under this Act before the Authorized
Officer, the Tribunal, the Collector, the
Commissioner, the State Government or the
Maharashtra Revenue Tribunal:

Provided that, where a party is a minor or lunatic, his
guardian may appear, and in the case of any other
person under disability, his authorised agent may
appear.

Explanation.- For the purposes of this section, the
expression “pleader” includes an advocate,
attorney, vakil or any other legal practitioner.”

Section 45 provides for revision by the State Government and states:

“45. Control.- (1) In all matters connected with this
Act, the State Government shall have the same
authority and control over the officers authorised
under Section 27, the Collectors and the
Commissioners acting under this Act, as they do in
the general and revenue administration.
(2) The State Government may, suo motu or on an
application made to it by the aggrieved person, at
any time, call for the record of any inquiry or
proceedings under sections 17 to 21 (both inclusive)
for the purpose of satisfying itself as to the legality
or propriety of any inquiry or proceedings (or any
part thereof) under these sections and may pass
such order thereon as it deems fit, after giving the
party a reasonable opportunity of being heard:

13

Provided that, nothing in this sub-section shall
entitle the State Government to call for the record of
any inquiry of proceedings of a declaration or part
thereof under section 21 in relation to any land,
unless an appeal against any such declaration or
part thereof has not been filed within the period
provided for it, and a period of three years from the
date of such declaration or part thereof has not
elapsed.

Provided further that, no order shall be passed
under this section so as to affect any land which is
already declared surplus and distributed according
to the provisions of this Act:

Provided also that the revisional jurisdiction under
this section shall be exercised only where it is
alleged that the land declared surplus is less than
the actual land which could be declared surplus.

(3) The State Government may, subject to such
restrictions and conditions as it may impose by
notification in the Official Gazette, delegate to the
Commission the power conferred on it by sub-

section (2) of this section or under any other
provisions of this Act except the power to make rules
under section 46 or to make an order under section

49.”

8. It will thus be seen that under Section 11 of the 1961 Act, where any

land held by a family is partitioned after the cut-off date of 26.09.1970,

the partition so made shall be deemed, unless the contrary is proved,

to have been made in anticipation of, or in order to avoid or defeat, the

Amending Act of 1972 and shall accordingly be ignored. There is no

14
doubt that on the facts of this case that the partition deed, as well as

its registration, is prior to the cut-off date.

9. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas was

declared surplus. An appeal preferred against this order was

dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On

02.03.1982, a learned Single Judge of the Nagpur Bench of the

Bombay High Court remitted the matter to the Surplus Land

Determination Tribunal for fresh enquiry. On remand, a fresh order

was passed by the Sub-Divisional Officer on 07.05.1984, where land

admeasuring 59 acres 35 gunthas was deemed to be surplus. An

appeal was filed against the aforesaid order by Vithaldas, his wife, his

son and the third daughter Bela Devi under Section 33 of the 1961 Act.

The two other minor daughters did not file any appeal, as they were

satisfied with the view adopted by the Sub-Divisional Officer, by which

no part of the property that devolved on them by means of the partition

deed was declared surplus. The State filed cross-objections in the

appeal filed by Vithaldas, challenging the exclusion of the land, inter

alia, of the two elder daughters. However, the State did not take care

to implead them. The appeal filed by Vithaldas et. al. was dismissed

15
by the Appellate Authority, who allowed the cross objections of the

State by its order dated 03.12.1984. The appellate authority found that

the partition deed dated 31.01.1970, though before the cut-off date,

was against the principles of Hindu Law, to the extent that it gave a

share to minor daughters in ancestral land. On this basis, the partition

deed was declared to be of no effect in law.

10. The aforesaid appellate order was challenged by Vithaldas and his

wife in writ proceedings before the Bombay High Court. The learned

Single Judge dismissed the writ petition in September, 1987. An intra-

court appeal was preferred which was then dismissed by the impugned

order dated 27.11.2007. A Special Leave Petition was filed by Vithaldas

through his legal representatives who are the two elder daughters, as

his legal heirs, as by now Vithaldas had expired. During the course of

the initial hearing, this Court, by its order dated 23.11.2016, passed an

order stating that it wished to see revenue entries in terms of Section

148 and 149 of the Maharashtra Land Revenue Code, 1966, post-

execution of the partition deed. An additional affidavit was filed by the

son of the late Vithaldas, stating that records from 1970-75 are in a

mutilated condition, but that from the records made available, the two

16
elder daughters were shown as occupants from 1972 to 1976 for survey

nos. 12 and 14, through their guardian, i.e. their grandfather.

11. When the matter was argued before a Division Bench of this Court,

Justice Sanjay Kishan Kaul, after stating these facts, held that a limited

fiction has been created by Section 11 of the 1961 Act, as a result of

which, if a partition deed is prior to the cut-off date, it cannot be ignored

under Section 11. The learned Judge also held that the State’s cross-

objections being allowed in the absence of the two elder daughters was

fatal, as they were both necessary parties to the proceedings. The

learned Judge then went into the unmarried daughters’ claims in HUF

property and held:

“38. The legal view, thus, is very clear:
a. A provision for marriage of unmarried daughters
can be made out of ancestral property.
b. Such provision can be made before, at the time,
or even after the marriage.

c. The provision is being made out of pious
obligation, though the right of women got diluted
over a period of time. However, with the amendment
to the Hindu Succession Act, in 2005, a specific right
is now conferred on women to get a share on
partition of ancestral property, including the right to
claim partition. As mentioned above this change
was brought about in Maharashtra in 1994, itself.”

17

12. The learned Judge went on to further observe that a provision for an

unmarried daughter in a partition deed may partake the nature of a gift,

and then concluded:

“45. In the end, it may be noted that the only aspect
on which the debate occurred was the share of the
two elder daughters, and the right to retain the land
as their separate land, without it being adjusted with
the lands of late Vithaldas. The findings above, thus,
lead to the conclusion that the view taken by the
SDO vide order dated 7.5.1984, regarding the land
of the two elder daughters, is the correct view, and
the subsequent view by the appellate authority
faulted on more than one reason, as mentioned
aforesaid. The further imprimatur of that view by the
learned Single Judge and the Division Bench of the
High Court, thus, also cannot be sustained.

46. The impugned orders of the appellate authority,
the learned single Judge and the Division Bench
are, thus, liable to be set aside and the view taken
by the SDO, restored, qua the lands located in
Survey Nos. 12 14 of Babhulgaon, giving rights to
the two elder daughters, who are the appellants in
the present proceedings.”

13. K.M. Joseph, J. differed with Justice Kaul. According to the learned

Judge, the questions that would arise for consideration by the Court are

as follows:

“114. The following questions would arise for
consideration by the Court:-

1. Whether the authorities under the Act have the
power to find that the partition entered into before

18
26.9.1970, was sham or collusive and thereby
ignore the same?

2. Notwithstanding the registered partition dated
31.01.1970, whether the property allotted to the
elder daughters of Shri Vithaldas is liable to be
included in the account of the family unit?

3. What is the effect of the cross-objections of the
State being allowed in the absence of elder
daughters, in the appeal before the Tribunal?”

After setting out the provisions of the Act, the learned Judge concluded

as follows:

“130. Thus, it can be concluded as follows:
i. A transfer or a partition entered into before
26.09.1970, if it is not genuine and is collusive or is
a sham transaction, can, in a given case, on
materials being present, be found to be so by the
Authority under the Act;

ii. What is contemplated under Sections 10 and 11
of the Act read with Section 8, undoubtedly, is a
transfer as defined in Section 8, being a genuine
transaction. A fraudulent transaction or a sham
transaction if entered into before 26.09.1970, would
incur the wrath of Section (3), and a farce of a
partition likewise, bringing about a mock division of
property among the sharers, would also incur wrath
of Section (3) of the Act. No doubt, even if the
transaction is a sham transaction, be it a transfer or
a partition, needless to say, it would incur the wrath
of Sections 10 and 11 and it would not be necessary
to justify the invalidity with any materials if entered
into or effected after 26.09.1970.

iii. It does not mean that a transaction which is
entered into, particularly after the Act came into

19
force, be it a transfer or a partition, and if there are
materials and circumstances brought out, which
persuades Authorities to hold that it is collusive or a
sham transaction and the property did not change
the hands, the property would not be liable to be
treated as held by the previous owner as on the
commencement day and included in the account
despite the purported transfer or partition.”

14. Having concluded thus, the learned Judge then went on to declare that

the partition deed, being unnatural, was sham; that coparcenary

property alone is partible, and stated that the question as to whether or

not a gift could have been validly made by Vithaldas to his elder

daughters cannot be gone into, as no such case had been set up.

Finally, the learned Judge held that it was of no moment that cross-

objections of the state were allowed without making the two elder

daughters parties to the appeal before the appellate tribunal, and then

concluded that the appeal should stand dismissed.

15. Shri Krishnan Venugopal, learned Senior Advocate appearing on behalf

of the Appellants largely relied upon the judgment delivered by Justice

Sanjay Kishan Kaul and in particular, strongly relied upon Gurdit Singh

v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. State of

Maharashtra (1980) 2 SCC 292. On the other hand, Shri Rahul Chitnis,

20
appearing for the State, largely read from Justice Joseph’s judgment

and supported it.

16. On a conspectus of the provisions of the 1961 Act that have been set

out hereinabove, what becomes clear is that transfers or partitions of

land made in anticipation of or in order to avoid or defeat the 1972

Amending Act were to be ignored in calculating ceiling limits. This was

so laid down by the Amending Act, 1975, which made 26.09.1970 the

cut-off date after which such transfers became suspect. What is

important to note is that the 1961 Act does not in any manner declare

such transfers to be void. However, if the contrary is proved on the facts

of a given case, i.e. that a bonafide transfer or partition was in fact

effected after the cut-off date, the person affected would be out of the

clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what

is important is the expression “shall accordingly be ignored”, which

occurs in Section 11.

17. The scheme of the 1961 Act is that a person or a family unit has to

submit returns by certain dates and extended dates that are mentioned

in Sections 12 and 12-A of the 1961 Act. Section 13 is important in that

where a person or member of a family unit either fails without

21
reasonable cause to furnish a return, or furnishes a false return, he

becomes liable to a penalty, which may extend to INR 100 or 500, as

the case may be. A false return may be ignored by the Collector,

requiring the person or family unit to submit a true and correct return

complete in all particulars under Section 13(2), together with the penalty

of INR 500. If thereafter, any such person or family unit fails to comply

with the order within the time so granted, then, as a penalty for failure

to furnish such return or a true and correct return complete in all

particulars, the right, title and interest in the land held by him or the

family unit as the case may be, in excess of the ceiling area, shall,

subject to the provisions of Chapter 4, be forfeited to the State

Government and vest in that Government. This Section gives a limited

jurisdiction to the Collector to determine whether a true and correct

return complete in all particulars has been given. Thus, a Collector

would be well within his jurisdiction to state that a registered partition

deed entered into after 26.09.1970 has been suppressed in the return

furnished, as a result of which a penalty of INR 500 may be imposed,

or excess land forfeited under Section 13(3). This jurisdiction is limited

only to the factum of a partition deed having been suppressed from the

22
return, and does not extend to conduct an enquiry as to whether a

partition deed prior to 26.09.1970 is or is not a sham document. Also,

the discretion vested in the Collector under Section 30 is at a stage

anterior to the holding of an enquiry under Section 14, and the resultant

declaration under Section 21.

18. By Section 14 of the 1961 Act, the Collector is then to hold an enquiry

either suo motu or otherwise, whether or not a return has been filed, in

respect of every person or a family unit holding land in excess of the

ceiling area. In so doing, Section 18 states that the Collector must

consider several matters including, under sub-clause (b), whether any

land transferred between 26.09.1970 and the commencement date

(which we have seen is 02.10.1975), or any land partitioned after the

cut-off date should either be considered or ignored in calculating the

ceiling area as provided in Sections 10 and 11 of the 1961 Act. If Section

18(a) to (k) are seen, the evidence adduced at the hearing to be given

to the holder and other persons interested in the land, only goes to

calculating the total area of the land, including land held by the holder

between 26.09.1970 and 02.10.1975 and lands that have been

acquired after 02.10.1975. All the details mentioned in Section 18 only

23
speak of ignoring certain transfers or partitions between the cut-off date

and the commencement date, and otherwise would only go to the

calculation of lands held by persons, and then applying the drill of the

ceiling provisions of the 1961 Act. To state that Section 18(l) is a catch-

all provision by which the Collector can determine whether a particular

transfer or partition is a sham transaction, even if entered into before

the cut-off date, is to go beyond the jurisdiction conferred on the

Collector by the 1961 Act. In point of fact, even the language of Section

18(l) makes it clear that “any other matter” is circumscribed by the

following words: “for the purpose of calculating the ceiling area, and

delimiting any surplus land.”

19. This becomes even clearer when the other provisions of the 1961 Act

are looked at. Under Section 21, the Collector has to make a declaration

as to entitlement of a person or family unit to hold within the ceiling area

and area of land which is in excess of the ceiling area. Further, what is

of importance is that Section 44B excludes pleaders from appearing on

behalf of any party in any of the proceedings under the 1961 Act. This

is for the reason that the Collector has to determine on the facts of each

case, based on returns filed if any, as to what areas are to be excluded,

24
and what areas of land are to be included so far as determination of

ceiling of a person or family unit is concerned. If it were to be held that

the Collector could go into a trial as to whether a particular partition deed

is or is not sham, even though it is before the cut-off date, would have

two effects that are not warranted in law – first, it would extend the legal

fiction that is limited to transfers and partitions made after the cut-off

date; and second, if a period even before the cut-off date can be

considered, it would render the cut-off date otiose, as then in all cases

the Collector could go into whether a particular transfer or partition has

been entered into to avoid the effect of the 1972 Amendment Act, which

is an enquiry restricted only to transfers and partitions which take place

on or after 26.09.1970 upto the commencement date. Also, if the

Collector were to substitute himself as a Civil Court deciding a Civil Suit,

it would be absolutely essential for a person or family unit to engage a

pleader of his choice to argue all the ramifications that his case may

have, both in fact and in law. In fact, a Civil Court alone would have the

jurisdiction to decide a question as to whether a partition deed entered

into before the cut-off date is or is not sham, which would involve a

declaration that the partition be declared void. The 1961 Act therefore

25
bars the jurisdiction of the Civil Court only insofar as transfers and

partitions are entered into on or after 26.09.1970 and before the

commencement date, and not to transfers and partitions that take place

before the cut-off date.

20. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act

is to be seen, it is clear that appeals are provided to the Maharashtra

Revenue Tribunal against a declaration or part thereof made under

Section 21 of the 1961 Act. The persons who would be aggrieved by

such declarations can only be the person or family unit whose ceiling

area is determined or the landlord to whom possession of land is to be

restored or the right, title and interest of the person or family unit whose

land is to be forfeited to the State Government. If at all a cross-objection

can be taken by a respondent under Section 33(1A), it can only be a

person or family unit or landlord spoken of in Section 21(1) of the 1961

Act. The State Government may perhaps file a cross-objection where it

contends that land has wrongly not been forfeited to it. But such is not

the case on the facts of this appeal. Thus, the State taking a cross

objection on the facts of this case would itself be outside Section 33(1A).

If at all the State can be said to be aggrieved by a declaration made

26
under Section 21, a suo moto power of revision is given to the State

Government under Section 45, which on the facts of a particular case

may well be exercised.

21. This apart, once it is clear that the elder daughters are affected by virtue

of the partition deed being held to be non est in law by the appellate

tribunal, they ought to have been made parties to the appeal so that

they could have made arguments in favour of the legal validity of the

partition deed. This opportunity being denied to them, as has been

rightly held by Justice Kaul, is also fatal to the appellate authority’s

order, which has therefore wrongly been upheld by the learned Single

Judge and Division Bench of the Bombay High Court.

22. At this stage, it is important to consider some of the judgments of this

Court under the 1961 Act. In Raghunath Laxman Wani and Ors. v.

State of Maharashtra (1971) 3 SCC 391, a Special Leave Petition was

entertained directly against the judgment and order passed by the

Maharashtra Revenue Tribunal dated 02.09.1966, in proceedings held

by the Deputy Collector under Section 14 of the 1961 Act in respect of

lands held by the appellants therein. The Deputy Collector and the

Tribunal concurrently found on fact that the appellants’ case of

27
severance of status and partition of the family lands – partially in 1956,

and then in 1960, was not acceptable. In the absence of any document

regarding alleged severance of the family and partition, other factors

when toted up rendered the appellants’ case of partition, first in 1956

and then in 1960, ‘doubtful’. Given these circumstances, this Court held

that it “would be more than reluctant to interfere and upset such a

finding” (see paragraph 14). The Court then examined the scheme of

the 1961 Act in paragraphs 15 to 17, and held that the ceiling area is to

be ascertained with reference to the state of affairs existing only on the

‘appointed date’. In this view, the Revenue Tribunal was held to be

correct in not taking into consideration three children born in the family

after the appointed date while determining the ceiling area to which the

appellants’ family was entitled. This case turned largely on its facts, and

was in any case decided before the introduction of Section 44-B to the

1961 Act in 1976 – which forbade pleaders from arguing cases before

the authorities under the 1961 Act.

23. In Jugal Kishore v. State of Maharashtra (1989) Supp. (1) SCC 589,

the question before this Court was whether in view of Section 100(2) of

the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act,

28
1958 (hereinafter referred to as the “Bombay Tenancy Act”), the

Tenancy Tehsildar had exclusive jurisdiction to decide the issue of

tenancy. In holding that the authorities under the 1961 Act would have

to determine the land holdings of the petitioner therein, this Court held:

“8. It is, therefore, submitted on behalf of the
petitioner that determination of the question of
tenancy by the Ceiling Authorities, was without
jurisdiction. The High Court held that in the facts of
this case it was not. The Ceiling Authority had to
determine the land holdings of the petitioner.
Incidentally, where a transfer is made by the
landholder creating a tenancy, there whether the
transfer was made bona fide or made in anticipation
to defeat the provisions of the Ceiling Act, is a
question which falls for determination squarely by
the Ceiling Authorities, to give effect to or implement
the Ceiling Act. In that adjudication it was an issue
to decide whether tenancy right was acquired by the
tenant of the petitioner. But here before the Ceiling
Authorities the adjudication was whether the
transfer to the tenant, assuming that such transfer
was there, was bona fide or made in anticipation to
defeat the provisions of the Ceiling Act. This latter
question can only be gone into in appropriate
proceedings by the Ceiling Authorities. Unless the
Acts, with the intention of implementing various
socio-economic plans, are read in such
complementary manner, the operation of the
different Acts in the same field would create
contradiction and would become impossible. It is,
therefore, necessary to take a constructive attitude
in interpreting provisions of these types and
determine the main aim of the particular Act in
question for adjudication before the court.

29

9. In our opinion, having regard to the Preamble to
the Act of the Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961, which was enacted
for giving effect to the policy of the State towards
securing the principles specified in clauses (b) and

(c) of Article 39 of our Constitution; and in particular,
but without prejudice to the generality of the
foregoing declaration, to ensure that the ownership
and control of the agricultural resources of the
community are so distributed as best to subserve
the common good and having regard to the purpose
of the Bombay Act, it was open to the Ceiling
Authorities to determine whether there was, in fact,
a genuine tenancy.”

In this case, no question similar to the question that is before us in the

present matter arose on the facts. It was assumed that adjudication

before the ceiling authority would include an adjudication as to whether

a person was made a tenant to defeat the provisions of the 1961 Act.

Based on that assumption, the question posed and answered by the

Court was that it would be the ceiling authorities – and not the Bombay

Tenancy Act authorities – who would be competent to answer such

question. This judgment also does not, in any manner, decide the

questions that have been posed before this Court, with particular

reference to the language of Section 11 of the 1961 Act and partitions

30
which took place prior to a cut-off date where even a limited deeming

fiction did not become applicable.

24. In State of Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326, this

Court was concerned with the operation and reach of Section 45 of the

1961 Act, which dealt with the revisional power of the State

Government. On the facts of Rattanlal (supra), the Additional

Commissioner had issued a show cause notice to the respondents

therein, inter alia, for the reason that the respondent did not disclose

the lands or his half share in a particular declaration, having suppressed

the same. On hearing the respondent, and for reasons recorded in his

order dated 09.06.1980, he remitted the case to the primary Tribunal to

redetermine surplus land. The High Court held that once an appeal was

preferred by the declarant under the 1961 Act, and an order made

thereon, the Commissioner or State Government is devoid of

jurisdiction to determine the ceiling area. The Supreme Court set aside

the judgment of the High Court, and held that it was perfectly within the

jurisdiction of the Additional Commissioner under Section 45 of the

1961 Act, suo moto, to call for the records of a case and thereafter to

decide it and pass such order thereon as it deems fit under Section

31
45(2) of the 1961 Act. This case again is far removed from the facts of

the present case, concerning itself with the suo moto powers

exercisable under Section 45 of the 1961 Act.

25. In Bhupendra Singh v. State of Maharashtra (1996) 1 SCC 277, this

Court, while dealing with proceedings under the 1961 Act, held:

“13. Section 18 of the Ceiling Act requires the ceiling
authority to consider certain matters enumerated
therein before issuing a declaration under Section
21 declaring the land which the person or the family
unit is entitled to hold and the surplus lands. Clause

(d) of Section 18 requires the Collector to consider,
inter alia, whether any transfer is made by the holder
in contravention of Section 8, and if so, whether the
land so transferred should be considered or ignored
in calculating the ceiling area under Section 10(1).

Clause (g) requires the authority to consider what is
the total area of land held at the time of the enquiry
and what is the area of land which the holder is
entitled to hold. Clause (j) requires the authority to
consider whether the proposed retention of land by
the holder is in conformity with the provisions of
Section 16. Clause (k) requires the authority to
consider which particular land out of the total lands
held by the holder should be delimited as surplus
land. Clause (l) requires the authority to consider
any other matter necessary to be considered for the
purpose of calculating the ceiling area and
delimiting any surplus land. If some diminution in the
area held by the person or family unit has occurred
between the relevant date and the date of the
enquiry, the above clauses require that these be
taken note of in accordance with law before any
declaration is made under Section 21. These are

32
important matters to be kept in mind especially when
in the instant case the diminution has taken place by
thrust of another statute, i.e., the Restoration Act.
Since the said land is neither encumbered land nor
land transferred in contravention of Section 8, it is
not liable to be included in the ceiling holding of the
appellant.”
(emphasis supplied)

This judgment is important in that it delineates the scope of Section 18(l)

of the 1961 Act, and confines it to ‘calculating ceiling area and de-

limiting surplus land’, albeit by the application of another statute,

namely, the Maharashtra Restoration of Lands to Scheduled Tribes Act,

1974.

26. Shri Krishnan Venugopal strongly relied on the observations in Gurdit

Singh (supra). This case dealt with Section 32-DD which was

introduced into ‘The Pepsu Tenancy and Agricultural Lands Act, 1955’

with retrospective effect from 1956. This Section states as follows:

“3. The Act was amended by Act 16 of 1962 and
Section 32-DD was introduced into the Act with
retrospective effect from October 30, 1956. That
section reads:

“32-DD. Future tenancies in surplus area and
certain judgments etc. to be ignored.—
Notwithstanding anything contained in this Act, for
the purposes of determining the surplus area of any
person—

(a) a tenancy created after the commencement of

33
the Pepsu Tenancy and Agricultural Lands (Second
Amendment) Act, 1956, in any area of land which
could have been declared as the surplus area of
such person; and

(b) any judgment, decree or order of a court or other
authority, obtained after the commencement of that
Act and having the effect of diminishing the area of
such person which could have been declared as his
surplus area shall be ignored.”

27. This Court repelled an argument enlarging the scope of Section 32-DD,

which was based on the object sought to be achieved by the Section in

the following terms:

“12. … We are aware that the object of this provision
in an Act like the one under consideration is to
prevent circumvention of its provisions by dubious
and indirect methods. But that is no reason why we
should put a construction upon the section which its
language can hardly bear. It would have been open
to the respondents to allege and prove that the
judgment was obtained collusively. But that could
have been done only after notice to Appellants 2 and
3 and after giving them an opportunity of being
heard. Therefore, to say, as the High Court has said,
that no prejudice was caused to Appellants 2 and 3
for want of an opportunity to them of being heard, is
neither here nor there. We think the High Court went
wrong in assuming that the Collector was right when
he ignored the judgment by his order dated May 20,
1963 on the ground that it had the effect of
diminishing the area of the first appellant which
could have been declared as his surplus.”

34

28. Likewise, as has been held by us hereinabove, it is not possible to state

that wherever the expressions “transfer” and “partition” occur in

Sections 8, 10 and 11 of the 1961 Act, they must be understood as

meaning transfers and partitions which are genuine. If the word

“genuine” is added, it would amount to straining the language of these

provisions and giving these provisions a construction which they cannot

possibly bear – a construction that would go against the object of giving

the Collector a limited jurisdiction to decide whether lands fall within the

ceiling area, and in so doing, whether transfers and partitions between

the cut-off date and commencement date should be “ignored”. It may

be added that the language of Section 11 also leads to the conclusion

that even in case of a partition that is made after the cut-off date and

before the commencement date, the power of the Collector is not to

declare such partition sham, and therefore void, which is for a Civil

Court to do, but is only to ignore such partition for the purpose of

calculating ceiling area.

29. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This

case also dealt with 1961 Act, the cut-off date in that case being

04.08.1959. As both the transfers in the aforesaid case were prior to

35
04.08.1959, this Court held that the High Court was not justified in

holding that the said transfers were either collusive or fraudulent. This

Court held:

“5. These sections are of no assistance to the
respondent because Section 6 takes within its fold
lands belonging to the owner, or his family as a
single unit and is not meant to cover the separate or
individual property of another member of the family
which cannot be clubbed together with land of the
concerned owner or family. The argument advanced
by the respondent appears to have found favour
with the Commissioner, but it was legally erroneous
as indicated above. In these circumstances the
most important fact to be determined was whether
or not any transfer that had been made by the
person concerned was prior to or after August 4,
1959. If the transfer was prior to August 4, 1959 then
the provisions of the Act would not apply at all. In
the instant case, both the transfers being three
years prior to the date mentioned above, the Act
would not apply to them and the Commissioner and
the High Court therefore erred in holding that the
lands transferred by Nemichand to his mother
should be included in the total area of the land
owned by the appellant.”

30. What is of importance in this case is that in a similar fact situation, if a

transfer took place before the cut-off date mentioned by the 1961 Act,

the 1961 Act would not apply so as to include lands subsumed in the

said transfers, in calculating the ceiling area.

36

31. Regard being had to our finding that the Collector’s jurisdiction under

the 1961 Act does not go to the extent of declaring a registered partition

deed that is made before the cut-off date as being sham, it is

unnecessary for us to go into any of the other findings of both the

learned judges of this Court in relation to Hindu Law.

32. We are, therefore, of the view that the appeal deserves to be allowed,

and the impugned judgment of the Bombay High Court dated

27.11.2007 set aside for the reasons given by us. The judgment of the

Sub-Divisional Officer dated 07.05.1984 stands restored, as a result.

…………………..………………J.

(R. F. Nariman)

……………..……………………J.

(S. Ravindra Bhat)

……………..……………………J.

(V. Ramasubramanian)

New Delhi.

19th February, 2020.

37

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation