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Vithaldas Jagannath Khatri (D) … vs The State Of Maharashtra Revenue … on 29 August, 2019

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6006 OF 2009

VITHALDAS JAGANNATH KHATRI (D)
Through SHAKUNTALA ALIAS SUSHMA ORS. …Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA REVENUE
AND FOREST DEPARTMENT ORS. …Respondent(s)

JUDGMENT

SANJAY KISHAN KAUL, J.

1. The socialistic agenda of the nascently formed Indian State with

large landless poor population was given an impetus inter alia by a

number of State legislations for re-distribution of agricultural land, by

putting a ceiling limit on the same, and then allotting it to the landless

poor. We are concerned here with the Maharashtra Agricultural Lands

(Ceiling on Holdings) Act 1961 (hereinafter referred to as the ‘said Act’).
Signature Not Verified

Digitally signed by
ANITA MALHOTRA
Date: 2019.08.30
17:22:35 IST
The said Act also went through many amendments top fine tune different
Reason:

aspects, most importantly the aspect of plugging loopholes, whereby

1
owners having land in excess of the ceiling limit would endeavour to

somehow re-distribute it among the family to bring it within the ceiling

limit, or at least, to reduce the excess land. The objective of the said Act

can well be deciphered from its preamble, which reads as under:

“An Act to impose a maximum limit (or ceiling) on the holding of
agricultural land in the State of Maharashtra; to provide for the
acquisition and distribution of land held in excess of such ceiling;
to provide that the lands taken over from undertakings and the
integrity of which is maintained in compact blocks, for ensuring
the full and efficient use of the land for agriculture and its efficient
management through corporations (including a company) owned
or controlled by the State, be granted to such corporations or
company; and for matters connected with the purposes aforesaid”

2. Chapter III of the said Act made provisions restricting transfers and

acquisitions and the consequences of contraventions. The relevant

Sections falling in the Chapter are reproduced hereunder:

“Section 8 – Restriction on transfer

Where a person, or as the case may be, a family unit holds land in
excess of the ceiling area on or after the commencement date, such
person, or as the case may be, any member of the family unit shall
not, on and after that date, transfer any land, until the land in
excess of the ceiling area is determined under this Act.

Explanation :- In this section, “transfer” means transfer, whether by
way of sale, gift, mortgage with possession, exchange, lease,
assignment of land for maintenance, surrender of a tenancy or
resumption of land by a landlord or any other disposition, whether
by act of parties made inter vivos or by decree or order of a court,
2
tribunal or authority (except where such decree or order is passed
in a proceeding which is instituted in such Court, Tribunal or
before such authority before the 26th day of September, 1970), but
does not include transfer by way of sale or otherwise of land for
the recovery of land revenue or for sums recoverable as arrears of
land revenue, or acquisition of land for a public purpose under any
law for the time being in force.”

…. …. …. …. ….

Section 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 Sectionsection 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.
3
Explanation :- For the purposes of clause (a) ‘transfer’ has the same
meaning as in Sectionsection 8.

All transfers made after the 26th day of September, 1970 but
before the commencement date, 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 SectionAmending 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 Sectionsection 9,
then as a penalty therefor, 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 Sectionsection 9, shall be
forfeited to Government.

4
Section 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 SectionAmending 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 Sectionsection 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.”

3. A reading of the aforesaid provisions would show that a fiction is

sought to be created (whereby a transfer made from a prior date, of

26.9.1970, is sought to be nullified, other than by way of a bona fide

transaction) by the SectionAmendment Act of 1972, by providing for the cut-off

date of 26.9.1970 qua any transactions or transfers, transactions after

which date being deemed to be transfers in anticipation, or in order to

defeat the object of the SectionAmendment Act of 1972. It may also be noticed

that it is only by the SectionAmendment Act of 1975 that the commencement

date was specified as 2.10.1975. Thus, while normally all the relevant

provisions of the legislation, having come into force from 2.10.1975, the

5
provisions would have applied from that date, i.e. 2.10.1975, a legal

fiction was created to apply the provisions retrospectively, from

26.9.1970. It does appear from the submissions that as the legislation

appears to have been debated and been in contemplation for some time,

the apprehension of transactions during this window of time, in

anticipation of the amendments, was taken care of by the aforesaid

provisions.

4. The factual matrix has to be examined in the context of the

aforesaid provisions, and in the present appeal we are practically

concerned with one document, which is the Partition Deed dated

31.1.1970, which has been duly registered, i.e., both the document and its

registration are undisputedly before the cut-off date of 26.9.1970.

5. The Partition deed has been executed between five parties – late

Shri Vithaldas Jagannath Khatri and his then minor son and three minor

daughters. It may, however, be noticed that two of the minor daughters

attained majority before the commencement date of 2.10.1975, though

they were not major on 26.9.1970. In terms of this document, the

agricultural land of the Hindu Undivided Family (‘HUF’) is sought to be

divided by mentioning all the parties as part of the HUF. The lands were

6
stated to be used jointly and shares in the lands were given to both, the

minor son and the daughters stating as under:

“….Party No.2 to 51 have to take the education to see that each
of them take it freely to provide for the expenses therefore and
to see that each of them will meet the expenses out of their own
property and that no dispute took place between them in future,
therefore we are executing keeping with us this deed of
partition…..”

6. After setting out the aforesaid recital, the property falling to each

of the parties is mentioned and post that, before the signatures, it is

further stated as under:

“In this way we have partitioned over estate, the property fallen to
the share of party have taken its possession became the full
owner thereof. Now nobody is concerned with the property of
others. Out of us for the education marriage purpose of party
No.2 to 5 and for the benefits of our family and for the successful
future, we of our free will consideration executed kept this
deed of partition, on this 31st day of January 1970.”

7. We may also notice that the prelude to the aforesaid Partition Deed

on account of an earlier Partition Deed executed between Vithaldas and

his father Jagannath, on 20.1.1955, when a separate provision was also

made through a Gift Deed by Jagannath, in favour of the wife of

Vithaldas.

8. On the provisions of the said Act coming into force, the Surplus
1
Children of Vithaldas

7
Lands Distribution Tribunal (for short ‘SLDT’) instituted proceedings in

exercise of suo moto powers in respect of the return filed under Section

12 of the said Act by Vithaldas, which Section falls in Chapter IV, dealing

with ‘surplus land’. In the course of the assessment proceedings

regarding surplus land, the holdings of the entire family were taken into

consideration, as in terms of Section 2 (11) of the said Act, the family

would include an HUF, which is joint in estate, or possession, or

residence. A family unit, under Section 11-A of the said Act, for

definition, has referred to Section 4, defining ‘land held by a family unit’.

In terms of order dated 19.11.1976, 60 acres and 27 gunthas of land of

late Vithaldas was declared surplus. This order was assailed before the

Maharashtra Revenue Tribunal, Bombay Bench, Nagpur, which

dismissed the appeal on 16.2.1977, resulting in proceedings being filed

by Vithaldas, before the Bombay High Court, Nagpur Bench. In terms of

order dated 2.3.1982, learned Single Judge of the Nagpur Bench of the

Bombay High Court remitted the matter back to the SLDT for fresh

inquiry, on the ground of lack of adequate opportunity provided to

Vithaldas and others to present their case.

9. On remand, a fresh order was passed by the SDO, Chikhali

8
District, Buldana on 7.5.1984. Various aspects of holding of Vithaldas

were examined. On the matter being revisited in these proceedings, land

measuring 59 acres and 35 gunthas was deemed surplus, under Section

3(2) of the said Act, while excluding (a) Potkharab land of Vithaldas, to

the extent of 12.16 acres; (b) Field Survey No.106, which was stated to

be vesting with the wife of Vithaldas, having been gifted by her father-in-

law Jagannath, and found that the same continued to be in possession of

Jagannath, as also recorded in the Record of Rights and crop statements;

(c) the land allotted to the two major daughters of Vithaldas, Shakuntala

and Durgadevi.

10. The appeal proceedings were lodged by Vithaldas, his wife, the son

and the third daughter, Beladevi, under Section 33 of the said Act. The

other two minor daughters, who had attained majority before 2.10.1975,

however, did not file the appeal as they were apparently satisfied with the

view adopted by the SDO. The State also filed cross-objections

challenging the exclusion of the land by the SDO qua (b) (c) aforesaid.

Since the two elder daughters were not aggrieved, they were neither the

appellant, nor the respondent before the appeal proceedings. Nor did the

State take care to implead them, despite having filed cross-objections qua

9
their land. The appeal court, however, dismissed the appeal, and allowed

the cross-objections vide order dated 3.12.1984. Since the land of the

two elder daughters is the only concern, in this matter, the rationale for

allowing the cross-objections has been set forth.

11. The principal plea, which found favour with the appellate

authority, was that the Partition Deed dated 31.1.1970 was against the

principles of Hindu law to the extent it gave a share to minor daughters in

ancestral land. The land is stated to have also continued in the possession

of Vithaldas. Even though the Partition Deed was pre the cut-off date of

26.9.1970, it was opined that the document could be looked into, in a

case like the present one, where the property was apportioned to the two

daughters who were not entitled to a share.

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

wife in the writ proceedings before the Bombay High Court, Nagpur

Bench, but that petition was dismissed vide oral judgment dictated over a

period of 7.9.1987 to 15/16.9.1987. There were certain other aspects also

urged in those proceedings, but they are not relevant for the present

appeal. The High Court agreed with the finding that the daughters, not

having a share in the property, a Partition Deed could not have conferred

10
any interest on them, albeit it was before the cut-off date of 26.9.1970.

13. An intra-court appeal was preferred, which was dismissed vide

impugned order dated 27.11.2007. The Division Bench agreed with the

findings that the partition effected vide Partition Deed dated 31.1.1970

was unnatural as it alienated properties to minor daughters, and that a

female child could not get a share in the ancestral property, even though

it was effected before the relevant date of 26.9.1970. Once again, as

reflected in the records, the factum of cultivation of land by late Vithaldas

was taken into account. The attainment of the age of majority by the

elder two daughters, before the commencement date, 2.10.1975, was also

ignored as irrelevant.

14. The appellants before the Division Bench also sought to raise the

issue of the two elder daughters not being arrayed as parties in the cross-

objections, even though their existing rights were being affected.

Further, it was argued that none of the members of the HUF had assailed

the Partition Deed on any account. These pleas also did not find favour

on the ground that it was late Vithaldas who sought to lose the land and,

in effect, it was for him to see how to confer the rights on his two elder

daughters. The two elder daughters were held to form part of the family

11
unit.

15. The Special Leave Petition (‘SLP’) was filed only by late

Vithaldas, through his legal representatives. The two elder daughters are,

thus, appellants as legal heirs of late Vithaldas, in the present

proceedings. This is of significance as the contention of respondents is

that the two elder daughters only stepped into the shoes of late Vithaldas,

and that they cannot de novo start proceedings in their own rights. Leave

was granted on 31.8.2009, and the interim order of status quo was

directed to continue throughout. On 23.11.2016, during the course of

hearing, an order was passed to obtain clarity, whether in pursuance of

the Partition Deed, the transfer of rights was ever reported to the revenue

authorities, in terms of Sections 148 149 of the Maharashtra Land

Revenue Code, 1966. The action, if any, taken by the revenue authorities

was also not apparently reflected in the records before the Court. Time

was granted to place on record the requisite material qua the

developments post the execution of the Partition Deed.

16. An additional affidavit was filed on behalf of the appellants,

affirmed in March, 2017. On the appellants seeking the record from the

Tehsil Office of the concerned district, they received a response,

12
informing them that records from 1970 to 1975 are in a mutilated

condition and that the mutation register for the period from 1964 to 1978

is not traceable. The crop statement was not available for the period

1970-1972 for Village Mangrul, while for Village Babulgaon the crop

statement was not available for the period 1970-1973, for Survey No.14.

It was thus notified that the crop statement for Survey No. 12 was not

available for the period 1971-1972. The records made available, however,

do show that from 1972- 1976, for Survey No. 12, and from 1973-1976,

as gathered for Survey No. 14, the two daughters were shown as

occupants, but through their guardian. It may be noted that somehow, on

attaining the age of majority, apparently no endorsement was made qua

the elder two daughters on that aspect. The Record of Rights also shows

a similar position.

17. The picture which emerges from the documents produced is that in

pursuance of the Partition Deed, which was obviously produced, both for

the Record of Rights and the Crop Register, the names of the two elder

daughters were entered though through their guardian, late Jagannath (the

grandfather), as they were minors at the relevant time, while the

corresponding endorsement on their attaining majority, before the

13
commencement date 2.10.1975 was seemingly not made.

18. We heard Mr. Krishnan Venugopal, learned Senior Counsel for the

appellants and Mr. N.R. Katneshwarkar, Advocate on behalf of the

respondent-State.

Deemed Fiction:

19. The legislation in question is a beneficial piece of legislation and,

indeed, must be given the widest amplitude, the object being to distribute

land among the landless. The preamble quoted aforesaid sets forth the

object of the said Act. But, it is equally true that in giving wider

amplitude to such legislation, it cannot be that the Court interprets the

words of the statute beyond its plain reading reflecting the intent of the

legislation. A preamble has its limitations insofar as being treated as an

aid for the interpretation of a statute. It cannot restrict or enlarge the

provisions of the Act.2 Thus, the provisions have to be read, to see

whether there is any ambiguity, requiring any further aid for construction

of those sections, or whether they are explicit and clear in their meaning.3

20. On a reading of the provisions of Chapter III, including Sections 8,
2
Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79; SectionState of West Bengal v. Union of India AIR
1963 SC 1241
3
The Sussex Peerage Case (1844) 11 Cl Fin 85 (HL).

14
10 11 of the said Act, there is no ambiguity as would require any aid to

construct the meaning of those Sections.

21. The commencement date would be the date from which the

provisions would come into force. However, the amendment of 1972

created a deemed fiction by inserting the provision for setting at naught

transactions that may have occurred on a prior date, i.e., from 26.9.1970.

The result is that the transactions or transfers in this window of about five

years would also be hit by the provisions of the said Act insofar as the

determination of surplus land is concerned. The object was “to prevent

circumvention by dubious and indirect methods.4” This is the view also

adopted by this Court in SectionGurdit Singh v. State of Punjab, 5 but then this

Court had gone on to observe that that was no reason why a construction

should be put on the Section which its language could hardly bear. The

legislation in question in SectionGurdit Singh v. State of Punjab6 was a similar

one, The Pepsu Tenancy and Agricultural Lands Act, 1955. It would be

difficult to accept and countenance a situation where, irrespective of

limitations imposed in considering the past time period, any transaction

could be so assailed. In the wisdom of the legislature, the window of five
4
Gurdit Singh v State of Punjab (1974) 2 SCC 260
5
(supra)
6
(supra)

15
years is provided as sufficient for scrutinizing transactions which could

be called “dubious and indirect methods” to evade the result of the said

Act. This is also reinforced by the provisions of Section 18, dealing with

determination of the surplus area of land where clause (b) specifically

provides as under:

“18. (a) xxxx xxxx xxxx xxxx

(b) whether any land transferred between the period from 26 th 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 Sectionsection 10 or Sectionsection 11;”

Thus, once again, it is clearly stated that the lands transferred
between the period 26.9.1970 and the commencement date (2.10.1975) is
what is to be ignored in calculating the ceiling area.

22. The effect of the aforesaid provision is that any land, even if it is

obtained by partition or other transfer, after the date of 26.9.1970 would

be included for the purposes of calculation of surplus land, as land of the

person who so transferred the same.

23. The legislature has also taken another caution. The second

Explanation to sub-section (1) of Section 10 also provides that documents

16
evidencing such transfer even before 26.9.1970 would not be exempted if

they are not registered on or before that date, or even if they are

registered after that date, they are not presented for registration on or

before that date. The requirement is for the transfer document to be, both

executed and presented for registration before the cut-off date. Thus, the

possibility of evading the land ceiling limits by creating documents on a

back date and subsequently producing them for registration is obviated.

24. Section 11 specifically talks about the partition deed in a similar

manner and, thus, not only transfers whether by way of sale, gift,

mortgage with possession, exchange, lease, assignment of land for

maintenance, surrender of a tenancy or resumption of land by a landlord

or any other disposition, are included, even the avenue by way of a

partition deed has been shut out, unless it has been executed prior to the

cut-off date. There is no doubt that in the present case, the partition deed

was executed before the cut-off date of 26.9.1970 and registered even

prior to that date.

25. On behalf of the appellants, a number of judgments have been

referred to, on how a deemed fiction should be construed. Thus, a legal

fiction is to be limited for the purpose for which it is created and should

17
not be extended beyond that legitimate field7. There are a number of

judgments referred to in the context of taxing statutes, but then the rules

of interpretation of taxing statutes, to be construed strictly, would be

different and there is no purpose in referring to these judicial

pronouncements. In the context of the Kerala Land Reforms Act, 1964,

the issue of legal fiction was, once again, examined8. The same

proposition was, once again, reiterated while observing that a legal

fiction is not to be extended beyond the purpose for which it is created,

and that it cannot be extended by importing another fiction. In the

context of Section 4A of that Act, it was held to be circumscribed by

express words – a mortgagee in possession was stated to be one who, for

a continuous period of not less than 50 years immediately preceding the

commencement of that Section held that capacity. The words

“immediately preceding the commencement” were required to be given

their ordinary and full meaning as reflecting the legislative intent and

thus, only such type of cases where a mortgagee was in possession,

immediately preceding the commencement of the Section, was

extendable for a period of 50 years in the past alone. It was further

7
SectionBengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603
8
SectionMancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185

18
observed as under:

“….However beneficial may be the scope and ambit of the legal
fiction created by the legislature while enacting Section 4-A such
fiction can arise only when the express language of the section
laying down the conditions precedent for raising of such a fiction
is complied with by the mortgagee-in-possession concerned
seeking the benefit of such a deeming fiction. Such a fiction cannot
be extended by the court on analogy or by addition or deleting
words not contemplated by the legislature.”

26. This judgment has found support in a subsequent judgment of this

Court in SectionRaj Kumar Johri v. State of M.P. 9 Thus, the aforesaid being the

manner of interpreting a provision for deeming fiction, the relevant dates

provided, of 26.9.1970 and 2.10.1975, giving a window of five years for

the State to take action and prevent any dubious transaction during this

period of time, cannot be expanded to an unlimited prior period of time.

27. This Court, in SectionUttar Chand v. State of Maharashtra,10 while

dealing with the very statute has opined that the cut-off date would be

sacrosanct. The factual contours dealt with partition before the cut-off

date, as also sale of land. Once the cut-off date is provided, it was

observed that they fell completely outside the ambit of the provisions of

the Act and, thus, the High Court would not be justified in presuming that
9
(2002) 3 SCC 732
10
(1980) 2 SCC 292

19
the transfers made were either collusive or fraudulent.

The appellate authority allowing the cross-objections:

28. The order passed by the competent authority, being the SDO,

insofar as the two elder daughters are concerned, held in their favour as

far as the lands vested in them, in pursuance of the Partition Deed.

There was, thus, no occasion for them to file an appeal, nor did they so

file an appeal. Other members of the family, who filed the appeal, did

not implead them as parties. Once again, naturally so, as they would not

be the interested parties, or even pro forma parties in that behalf.

However, once the State decided to file cross-objections and, in that,

impugned even that portion of the order of the SDO which held in favour

of the two elder daughters, there is no hesitation in stating that they were

necessary parties to those proceedings. It is no answer to say that since

the effect of the land ceiling would be to restrict the area of their father,

late Vithaldas, it is for Vithaldas to see how he can benefit his daughters.

This fundamental defect cannot be cured in the subsequent proceedings,

as the right of appeal is a statutory right and an important one. This

aforesaid view is reinforced by a catena of judicial pronouncements. It
20
has been held that the Code of Civil Procedure, 1908 does not

contemplate filing of cross-objections against a party who is not a party

to the appeal11. In case such objections have to be filed two distinct

operations are necessary. He must implead the persons as parties qua

whom he intends to file cross-objections then he must file the

memorandum of cross-objections12. The position would be no different

qua a judicial or quasi-judicial authority as a party to be effected must get

a right of hearing13. Thus, unqualified imprimatur can be lent to this view.

29. Thus, for the aforesaid reason also the cross-objection could not

have disturbed the status of the two elder daughters.

Unmarried daughters’ claim in HUF property:

30. It has already been observed that non-impleadment of the two elder

daughters would be fatal to the appellate proceedings. But, they are fatal

for more than that reason. In fact, the view taken by both the learned

Single Judge and the Division Bench would equally fall foul of the legal

treatise, enunciating the rights of an unmarried daughter. The view taken

11
SectionRajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533
12
SectionVenkatapathi v. Veerayya AIR (30) 1943 Madras 609
13
SectionUdit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786
(WS)

21
is that since these lands were given to minor unmarried daughters, they

having no share in the HUF property, such grant is contrary to law at that

point of time.

31. It may be noticed, of course, that the lis has been pending, and the

current scenario is one where even daughters have been given rights in

the ancestral/HUF property, in terms of the amendment made to Section 6

of the Hindu Succession Act, 1956. The State of Maharashtra, where the

land is located was a step ahead inasmuch as vide Maharashtra Act 39 of

1994, which was brought into force on 22.6.1994, such rights were

conferred on women by making them also a coparcener by birth.

However, even on the date when the Partition Deed was executed, the

legal position was not as has been enunciated.

32. It has been observed that a father can make a gift within reasonable

limits of ancestral immovable property to his daughter as part of his

moral obligations, at the time of her marriage or even thereafter. In fact,

there is an observation made that gift made of 1/6 th of the total holding of

the ancestral property is valid14. This is in view of the fact that such gifts

made are for pious purposes, but the alienation must be by an act inter

vivos15.

14

SectionPugalia Vettorammal and Anr. v. Vettor Goundan (1912) 22 MLJ 321
15
SectionR. Kuppayee v. Raja Gounder (2004) 1 SCC 295

22

33. In Guramma Bhratar Chanbasappa Deshmukh v. Mallappa

Chanbasappa Ors.16, the legal position has been summarized as under:

“15… In Madhaviya, pp. 41 and 42, a text of Katyayana is cited
authorizing the gift of immovable property by a father to his
daughters besides a gift of movables up to the amount of 2000
phanams a year…

…Manu says
“To the unmarried daughters by the same mother let their brothers
give portions out of their allotments respectively, according to the
class of their several mothers. Let each give one-fourth part of his
own distinct share and those who refuse to give it shall be
degraded.”

These and similar other texts indicate that Hindu law texts not only
sanction the giving of property to daughters at the time of partition
or at the time of their marriage, as the case may be, but also
condemn the dereliction of the said duty in unequivocal terms. It is
true that these Hindu law texts have become obsolete. The
daughter has lost her right to a share in the family property at the
time of its partition. But though the right has been crystallized into
a moral obligation on the part of the father to provide for the
daughter either by way of marriage provision or subsequently…

…The decision in Kudutamma v. Narasimhacharyalu [(1907) 17
MLJ 528] is rather instructive. There, it was held that a Hindu
father was entitled to make gifts by way of marriage portions to his
daughters out of the family property to a reasonable extent…

…Wallis, J. in his judgment pointed out that unmarried daughters
were formerly entitled to share on partition and that right fell into

16
(1964) 4 SCR 497

23
desuetude, a gift made to a daughter was sustained by courts as a
provision for the married couple. The learned Judge summarised
the position thus, at p. 532:

“… although the joint family and its representative, the father or
other managing member, may no longer be legally bound to
provide an endowment for the bride on the occasion of her
marriage, they are still morally bound to do so, at any rate when
the circumstances of the case make it reasonably necessary.”…

…Another Division Bench of the Madras High Court considered
the question in Sundaramya v. Seethamma [(1911) 21 MLJ 695,
699] and declared the validity of a gift of 8 acres of ancestral land
by a Hindu father to his daughter after marriage when the family
was possessed of 200 acres of land. The marriage took place about
forty years before the gift. There was no evidence that the father
then had any intention to give any property to the daughter. The
legal position was thus expounded by the learned Judges. Munro
and Sankran Nair, JJ.:

“The father or the widow is not bound to give any property. There
may be no legal but only a moral obligation. It is also true that in
the case before us the father did not make any gift and discharge
that moral obligation at the time of the marriage. But it is difficult
to see why the moral obligation does not sustain a gift because it
was not made to the daughter at the time of marriage but only
some time later. The moral obligation of the plaintiff’s father
continued in force till it was discharged by the gift in 1899.”…

…Venkataramana Rao, J. in SectionSithamahalakshmamma v. Kotayya
[(1936) 71 MLJ 259] had to deal with the question of validity of a
gift made by a Hindu father of a reasonable portion of ancestral
immovable property to his daughter without reference to his son.
Therein, the learned Judge observed at p. 262:

24
“There can be no doubt that the father is under a moral obligation
to make a gift of a reasonable portion of the family property as a
marriage portion to his daughters on the occasion of their
marriages. It has also been held that it is a continuing obligation till
it is discharged by fulfilment thereof. It is on this principle a gift of
a small portion of immovable property by a father has been held to
be binding on the members of the joint family.”
Adverting to the question of the extent of property he can gift, the
learned Judge proceeded to State:

“The question whether a particular gift is reasonable or not will
have to be judged according to the State of the family at the time of
the gift, the extent of the family immovable property, the
indebtedness of the family, and the paramount charges which the
family was under an obligation to provide for, and after having
regard to these circumstances if the gift can be held to be
reasonable, such a gift will be binding on the joint family members
irrespective of the consent of the members of the family.”
This decision was followed by Chandra Reddy, J. of the Madras
High Court in SectionAnnamalai v. Sundarathammal [(1952) II MLJ 782,
784]…

16… The legal position may be summarized thus: the Hindu law
tests conferred a right upon a daughter or a sister, as the case may
be, to have a share in the family property at the time of partition.
That right was lost by efflux of time. But, it became, crystallized
into a moral obligation. The father or his representative can make a
valid gift, by way of reasonable provision for the maintenance of
the daughter regard being had to the financial and other relevant
circumstances of the family. By custom or by convenience, such
gifts are made at the time of marriage, but the right of the father or
his representative to make such a gift is not confined to the
marriage occasion. It is a normal obligation and it continues to

25
subsist till it is discharged. Marriage is only a customary occasion
for such a gift. But the obligation can be discharged at any time,
either during the lifetime of the father or thereafter. It is not
possible to lay down a hard and fast rule, prescribing the
quantitative limits of such a gift as that would depend on the facts
of each case and it can only be decided by courts, regard being had
to the overall picture of the extent of the family estate, the number
of daughters to be provided for and other paramount charges and
other similar circumstances…”…

In the aforesaid case, a discussion took place in respect of a Gift

Deed executed with respect to a daughter. The acceptability of gifting

of a reasonable part of the ancestral property, in favour of daughters,

for marriage purposes, was held to be valid, and in accordance with

Mitakshara law. There is a discussion of even the Manusmriti to

conclude that, though it may not reflect the current legal position, but

consistently, the Hindu texts not only sanction the giving of properties

to daughters at the time of partition, or at the time of marriage, but

even provisions can be made in advance, for the same.

34. The judicial pronouncement in SectionAnnamalai Ammal v.

Sundarathammal Ors.17 may also be noticed, where it has been

observed as under:

17

AIR 1953 Mad 404

26
“5. If the obligation is moral and continuing one and could be
made long after the marriage, could it be said that it is not within
the competence of a father to make such a gift before the marriage?
In my opinion, there is not much difference in principle between a
gift after the marriage, and a gift before the marriage, the object of
such a gift being to make a future provision for the bridal couple.

6. This leads me to the next question whether the circumstance that
a gift is not described as a marriage provision under the document
renders it an invalid one? To my mind, it appears it does not affect
the validity of the gift. When a father makes a gift of a reasonable
portion of the property to an unmarried daughter it may be
assumed that it was meant to be a marriage provision. It is to be
observed in this case that under Ex. P. 1 the plaintiff was given
only a vested remainder and the gift in her favour would take effect
only after the lifetime of the first defendant.”

35. The aforesaid judgment received the imprimatur of this Court in

Guramma Bhratar Chanbasappa Deshmukh Ors. v. Mallappa

Chanbasappa Ors.18.

36. 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,

18
(supra)

27
with the amendment to the SectionHindu 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.

37. If the facts of the present case are averted to, the aforesaid is

exactly what has been done under the Partition Deed. A provision was

made for the marriage of the daughters. In fact, the provision is for

education and marriage purposes. In the context of where the society is

today, such an endeavour should be commended as salutary, rather than

be frowned upon. It was sustainable in law then, and it is more than just

merely sustainable in law now. Thus, there is no doubt that there was

nothing prohibiting such a provision from being made. If the law permits

so, it can hardly be called fraudulent. Thus, the very premise of allowing

the cross-objection has no sustenance in law.

38. It may also be noticed the fact that the two elder daughters, whose

rights have been debated actually, even attained majority before the

commencement date, i.e., they were major unmarried daughters on the

date when the amendments came into force. They were, thus, not
28
included even in the family unit in terms of the definition contained

under Section 4, which reads as under:

“Section 4 – Land held by family unit
(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.

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.

(2) For the purposes of this section, all declarations of dissolution
of marriage made by a Court after the 26th day of September,
1970, and all dissolutions of marriage by custom, or duly made,
pronounced or declared on or after that date shall, for the purposes
of determining the ceiling area to be held by a family unit, be
ignored; and accordingly, the land held by each spouse shall be
taken into consideration for that purpose, as if no dissolution had
taken place. But, if a proceeding for dissolution of marriage has
commenced before any Court before the aforesaid date, then the
dissolution of marriage shall have full effect (whether the marriage
is dissolved before or after that date), and shall be taken into
consideration in determining the ceiling area of a family unit.”

29
The question of including the daughters would only arise if the

document of partition deed was found to be fraudulent. Thus, for this

reason also, the property cannot be included and clubbed with the land of

late Vithaldas.

39. As observed above, the form of the document is not important in

this behalf. Such provision can be made in a partition deed. It may be in

the nature of a gift. So what? None of the members of the family have

ever sought to assail or challenge the same. It is with the consensus of

the family, apart from the legality of the same. The judgment of the

Kerala High Court in SectionPonnu Anr. v. Taluk Land Board, Chittur

Ors.,19may also be referred to, where, while dealing with the issue of a

ceiling case, the conferring of rights on the son, under a partition deed,

was held to be valid as being capable of being construed as a gift. The

provisions of Section 122 of the Transfer of Property Act, 1882

(hereinafter referred to as the ‘SectionTP Act’), read with Section 123, were

discussed. A gift, being a transfer of property made voluntarily and

without consideration, has to be made by a registered instrument. A gift

is essentially a transfer. Thus, even if there were no pre-existing rights, it

19
(1981) KLT 780

30
could be a valid gift, so long as the said requirements are met. In the

facts of that case, the partition deed was not even between the joint

owners or co-owners, but between the persons who owned the land

exclusively and another person who held no existing title or right. It was

held that a tribunal could go behind and look at the real nature of the

transaction. Reliance was placed on SectionMade Gouda v. Chenne Gowda,20

where a person who was not a co-owner was also a party to a transaction,

and it was held that the transaction in regard to that particular item of

property was really a gift and, thus, the requirements of a valid gift deed

should be met. Similarly, in SectionRamaswami Pattamali v. Lakshmi21, on a

proper understanding of a transaction, the document was construed as a

composite deed of partition and assignment. Also, in SectionNamburi Basava

Subrahmanyam v. Alapati Hymavathi Ors.22, while deciding whether

the document in question was a will or a settlement, it was held held that

the nomenclature of the document is not conclusive, and instead its

substance would be determinative . In a nutshell, the view is that too

much importance should not be attached to the nomenclature of a

document and one can look behind the façade of the document to
20
AIR 1925 Mad 1174
21
AIR 1962 Ker 313
22
(1996) 9 SCC 388

31
decipher the true nature of the transaction.

40. The aforesaid enunciation of the law reflects the correct legal

position. In the given facts of the case it is not in dispute that the Deed

was a registered document. Thus, even if one construes it as a partition-

cum-gift deed, it would make no difference as the requirements of a gift

deed, under Sections 122 Section123 of the TP Act stand satisfied.

41. Legal position in the context of the facts of the present case, thus,

show that even if the document is effectively a gift deed, and Hindu Law

permits the making of a provision for the daughter for her marriage, the

execution of a partition deed, which has the effect of such a gift would

not nullify the effect of the deed. This is so as a provision made for the

daughter out of the ancestral property would be in compliance of the

pious obligation.

42. 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
32
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.

43. 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.

44. If any consequential orders are to be passed by the competent

authority, arising from the aforesaid finding, the needful be done within a

period of two months of the order being placed before the said authority.

45. The appeal is accordingly allowed. The parties are left to bear

their own costs.

………………………………J.

[Sanjay Kishan Kaul]

New Delhi.

August 29, 2019.

33
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6006 OF 2009

VITHALDAS JAGANNATH KHATRI (DEAD)THROUGH
SHAKUNTALA ALIAS SUSHMA ORS. …APPELLANTS(S)

VERSUS

STATE OF MAHARASHTRA ORS …RESPONDENT(S)

JUDGMENT

K. M. JOSEPH, J.

1. Having perused the judgment authored by Brother

Justice Sanjay Kishan Kaul, notwithstanding the highest

respect that I maintain for him, I express my inability

to concur with his judgment.

2. This appeal is filed by the appellants against the

judgment of the High Court of Bombay, dismissing the

appeal filed by their father, Late Shri Vithaldas and

their mother and confirming the judgment of the Learned

Single Judge in the Writ Petition filed by their

parents and also the order of the Tribunal under the

1
Maharashtra Agricultural Lands (Ceiling on Holdings)

Act, 1961 hereinafter referred to as the Act.

3. Late Shri Vithaldas was married and had three

daughters and a son. He purported to enter into a

partition which was registered on 31.01.1970. At the

heart of the controversy in this case, is the allotment

of shares to his two elder daughters, namely, Smt.

Shakuntala and Smt. Durga Devi. They are hereinafter

referred to as the elder daughters. They are appellant

1 and 2 in this Court. Both of them were minors at the

time of partition, and the question is whether 31 acres

and 29 guntas of land allotted to them is to be excluded

from the account of the family unit of Shri Vithaldas

in determining the surplus land under the Act.

Appellants 3 and 4 before this Court are the son and

the third daughter of Late Shri Vithaldas.

4. Vithaldas filed a return under Section 12 of the

Act on 02.10.1975. The authority passed an order

declaring the total holdings of Vithaldas to be 118

acres and 17 guntas. 60 acres and 27 guntas were held

to be surplus land and in excess of the ceiling area.

2
The Tribunal dismissed the appeal filed by Vithaldas

as also cross objections by the State. By order dated

02.03.1982, the writ petition filed by Shri Vithaldas

came to be allowed on the score that principles of

natural justice were violated. Thereafter, the Sub-

Divisional Officer passed order dated 07.05.1984

whereunder he excluded the land given to his elder

daughters, viz., Shakuntala and Durga Devi, under the

partition deed. The land which is allotted to the elder

daughters by the partition deed, was comprised in

village Babulgaon. It comprised of a total 31 acres and

29 guntas. In Survey No. 12, the area is 17 acres 23

guntas and in Survey No. 14, the area is 14 acres and

6 guntas. He further found that the family unit was

entitled to retain 60 acres and 15 guntas. 6 acres 15

guntas were found to be Pot kharab lands and adding the

same to 54 acres, (the limit for the lands in question)

the family unit was found entitled to hold 60 acres and

15 guntas. It was further found that 59 acres and 35

guntas were deemed to be surplus land under Section

3(2) of the Act. The land gifted to his wife Kamla Devi

by Shri Jagannath Khatri (fathr of Vithaldas) was found

3
as having remained with him (the donor) and his name

appeared in the record of rights. Thus, after excluding

the 31 acres and 29 guntas of land, allotted to the

elder daughters and the land which was gifted to the

wife of Vithaldas but continued to be in possession of

the donor, the total land was 119 acres and 50 guntas.

5. Ceiling Appeal No. 59 of 1984 came to be filed by

Vithaldas, his wife and appellants 3 and 4 who are the

son and youngest daughter of Vithaldas.

6. The State of Maharashtra, on the other hand, filed

cross objections. The subject matter of the cross

objection was as follows:

Land gifted to Kamla Devi, wife of

Vithaldas was wrongly excluded from the

account of the family.

Thereafter, in regard to the partition

deed which is the subject matter of the

controversy before us, the following is stated

in the cross-objections:-

The State objects to the partition deed at the

4
record page No. 71 on following counts-

i.The unnatural partition of minor sister is

resorted to when the natural guardians are

alive and nothing untowards is proved against

them.

ii.That instead of the present appellants who is

the father of the minors and major and de facto

guardian; the present partition deed shows the

guardianship with Jagnnath Khatri who is the

grandfather of the minors.

iii.The female child although gets the right to

inherit the succession “opens” for her only on

the death of the parents. Thus the partition

deed is un-natural and against the sequence of

SectionHindu Act of Maintenance.

These are the national Acts passed by

Parliament. The unnaturally therefore needs to

be done away with.

The entire area with the appellants, wife and

appellants are to be clubbed together as per

the definition of the family unit.

5

7. In the reply filed by Shri Vithaldas and his wife

to the cross-objections, in so far as it is related to

the partition, it was stated as follows:

The appellants further denied the contention

raised by the Respondent State so far as the

partition or allotment of share to the

daughters is concerned. The nomenclature is

immaterial one. The factum of possession and

cultivation is material one. The learned Sub

Divisional Officer has rightly excluded the

Survey Nos. 13 and 14 of Babalgaon from

counting in the holding and the said finding

need not any interference from this Tribunal.

The contention raised in this ground are

denied.

8. The Tribunal dismissed the appeal filed by the

appellants and allowed the cross objections.

Resultantly, the land, which is the subject matter of

partition deed and which stood allotted to the elder

daughters and the property which was the subject matter

of gift deed in favour of his wife came to be included

6
in total land holding of the family. The total extent

of land was found to be 181 acres and 26 guntas. 111

acres and 39 guntas were declared surplus land.

9. Shri Vithaldas and his wife challenged the order

before the High Court. Therein, appellants 1 and 2

before us were respondents 6 and 7. Appellants 3 and 4

before this Court were respondents 4 and 5. The learned

Single Judge, by judgment, upheld the order of the

Tribunal, in regard to viz., the property, which was

subject matter of the gift in favour of the second

appellant (wife) and the properties which were set

apart for the two elder daughters. On the basis of an

error determined by the learned Single Judge, the

surplus land was held to be 103 acres and 36 guntas.

It was Shri Vithaldas and his wife who preferred the

Letters Patent Appeal No. 3 of 1991. By judgment dated

27.11.2007, which is impugned in this appeal, the

Division Bench upheld the view taken by the learned

Single Judge. His wife Smt. Kamladevi, though the 2nd

appellant before the High Court is made a proforma

respondent.

7

10. It is relevant to consider the findings of the

Tribunal:

In regard to the partition deed dated

31.01.1970, the contention of the State was

that the daughters were not coparceners.

They had no right to share in partition of

ancestral property. Their right opened only

upon the death of the father. The partition

was attacked as unnatural. His wife, who

was entitled to a share, was not given any

share. The grandfather was shown as the

guardian of the minor children though both

the parents were living. The contention of

the appellants was noted that what is

material is the factual position as to

cultivation. The Ceiling Authorities are

not entitled to go behind the partition

which took place before 26.09.1970. If the

appellants-Vithaldas was not holding these

lands on 26.09.1970 and thereafter, they

could not be included.

8

11. Reliance was placed on the judgment of the Bombay

High Court:

“In the first place it is contended that
Kiran the major unmarried daughter who is
not included in the concept of “Family
unit” under Section 4 of the Act was
entitled to share on partition of the
ancestral and joint family property and
therefore, land to the extent of her share
should be excluded in “terms of Section
3(3)(i) read with section 4 of the Act.
This point has merely to be stated to be
rejected. Hindu Law is clear what only
certain females such as wife, widow, widow
mother, grand mother only are entitled to
share on partition. Unmarried daughters
major or minor, married or unmarried does
not belongs to that category of females.”

12. Reliance was also placed on judgment in Writ

Petition No. 2791 of 1976 by the Nagpur Bench of the

Bombay High Court. Therein it was found that the High

Court had ignored a partition with the declarant’s

mother, by registered partition deed dated 09.01.1970.

13. The appellants-elder daughters, who were allowed

shares in partition, were found to be minors.

Shankuntala, whose date of birth was 03.11.1955 was 14

years of age and Durga Devi, whose date of birth is

29.08.1957, was 12½ years old, when the partition was

9
effected on 31.01.1970.

14. Vithaldas continued to be the owner as title had

not passed to the two daughters by a legally valid

instrument.

15. As far as the actual possession was concerned, the

Crop Statement in respect of Survey No. 14 for the year

1970-1971 and 1971-1972, showed the cultivation by

Vithaldas. For the years 1972-1973 to 1974-1975, it was

shown as jointly cultivated by Vithaldas and daughter

Durga Devi.

16. In respect of Survey No.12, the property allotted

to daughter Shakuntala, it was found that it was being

cultivated by Vithaldas along with daughter Shakuntala.

17. That crop statements for other years were not filed

it was noted. Ludicrous it was found that the minor

daughters had the necessary wherewithal to cultivate

the land independently. It was found that Vithaldas

continued to hold the lands.

18. The writ petition was filed, viz., [Writ Petition

10
No. 111 of 1985] by Vithaldas and his wife and wherein

respondent 6 was Smt. Shakuntala and respondent 7 was

Smt. Durga Devi, the elder daughters. Be it noted that

the elder daughters did not challenge the order of the

Tribunal. The learned Single Judge has proceeded to

uphold the findings of the Tribunal except as we have

noticed.

19. Learned Single Judge referred to SectionBhagwandas Heda

and others v. State of Maharashtra and others1, and the

decision in Writ Petition No. 2997 of 1976, and

thereafter, proceeded to hold as follows:

“8. Moreover, it may be seen that
although the respondents 6 and 7 were major
on the commencement date i.e. 2-10-1975,
they were still minor being aged 14 and 12
and half years, respectively, on
31.01.1970, when the partition was
affected. In fact, their father, was,
therefore, in possession of their alleged
shares in field S.No.14 of village
Babhulgaon and the crop statements for the
years 1970-71 and 1971-72 show his
cultivation, while crop statements for the
years 1972-73 to 1974-75 show the joint
cultivation by him and his daughter
Durgadevi. As regards field Survey No. 12,
during the year 1974-75 the father
Vithaldas along with his daughter

1 1983 Mh. L.J. 825

11
Shakuntala is shows as jointly cultivating
the said filed. AS regards filed Survey No.
14 for the years 1970-71 and 1971-72
Vitthaldas is shown to have cultivated the
said field. It is on the basis of these
facts that the learned M.R.T. held that the
petitioner Vithaldas was holding field
survey no. 12 admeasuring 17 acres 28
gunthas and survey no. 14 admeasuring 14
acres 6 gunthas of village Babulgaon, which
is alleged to be allotted to the shares of
the respondents 6 and 7, respectively, in
the alleged partition deed dated 31-1-1970.

In my view, the above finding is correct,
or not any rate cannot be said to be
perverse on the basis of the evidence on
record in the instant case. It, therefore,
deserves to be upheld.”

Though the appeal was filed before the Division

Bench, by Shri Vithaldas (appellant No.1) and his wife,

during the pendency of the appeal Vithaldas passed

away. Thereafter, the impugned judgment would show

Respondents 4 to 7 as LRs of appellant No.1.

20. Before the Division Bench, attention of the

judgment in this regard in Uttar Chand (Dead) by Lrs.

v. State of Maharashtra and another2, was invited. The

said judgment will be referred to later on. The State

2 AIR 1980 SC 806

12
pointed out that the partition involved in the said

case decided by this Court was among persons who had

an existing interest in the property. The fact that

wife of Vithaldas who had a right in the partition was

not given a share, was taken note of. The argument of

the State was that the partition deed did not effect

any transfer in favour of the elder daughters, and

therefore, there was no question of recognizing any

transfer effected prior to 26.09.1970.

21. Thereafter, the findings are to be found in

paragraphs 9, 10, 11, 12:

“9. We have carefully considered the
rival submissions. First, in 1970,
there could be no question of daughters
being entitled to a share of family
properties in a partition during the
life-time of their parents. Further,
showing father of appellant No. 1, as
their guardian in such a partition,
would not result in severing them from
the appellants’ family. Had appellant
No.1 so wished, he could have gifted the
properties to respondent Nos.6 and 7,
but that too would not have mattered so
long as respondent Nos.6 and 7 continued
to be a part of his family. The judgment
of the Supreme Court in Uttar Chand v.

State of Maharashtra, reported at AIR
1980 SC 806, on which the learned
Advocate for the appellants places

13
reliance, does not help the appellants,
since in that case, the Apex Court was
considering actual transfers effected
before the relevant date, whereas in the
case at hand, there are no such actual
transfers, but only attempted evasion,
if we may so describe the partition
dated 31-1-1970. Further, as rightly
observed by the learned Single Judge,
the 7/12 extracts of the fields in
question show that they were in joint
cultivation of appellant No.1 and his
daughters right up to the year 1975.

10. It is not necessary to dissect
the expression used by the Tribunal
while discussing the effect of these
transfers. As held in the judgment of
this Court in SectionDadarao v. State of
Maharashtra, reported at 1969 Mh.L.J.
813, on which the learned Advocate for
the appellants has placed reliance,
such partition may be valid or invalid
as between the parties. The question is
whether it is to be recognized for the
purpose of determining the ceiling area
or not. Herein, since there was no
transfer by the instrument dated 31-1-
1970 in favour of respondent Nos.6 and
7, there was no question of recognizing
and transfer for the purpose of
determining surplus land of appellant
No.1.

11. The learned Advocate for the
appellants submitted that the partition
had not been questioned by the concerned
members of the family and, therefore,
there was no reason whatsoever for
ignoring such partition. He submitted
that the question whether respondent

14
Nos.6 and 7 were entitled to a share in
such partition, could have been
agitated only by respondent No.4
Anilkumar and appellant No.2 Kamladevi
and it was not open for the State to
question the rights created in favour
of respondent Nos.6 and 7 by a document
dated 31-1-1970.

12. This fallacious contention was
rightly repelled by the learned AGP by
pointing out that the State was as much
an interested party as the family
members, because operation of the
provisions of the Act entitled the State
to secure the surplus land for the
purpose of their distribution. If the
argument of the learned Advocate for the
appellants were to be accepted,
fictitious transfer, in which the
transferor or the transferee had no
dispute, would have taken out the entire
surplus land out of the provisions of
the Act. Therefore, this contention of
the learned Advocate for the appellants
has to be rejected.”

22. As regards the flaw in entertaining the cross

objection filed by the State, it came to be dealt with

by the High Court on the footing that under Section 33

of the Act, the Code of Civil Procedure, 1908 was to

be followed. It was found that the observation of the

Tribunal about State not being required to pay court

fee, was not proper but non-payment of court fee was

15
not a matter over which a litigant could take

advantage. State could approach the Tribunal to make

the deficiency good. Thereafter, the question was

posed whether the Tribunal could have entertained the

cross objection which affected the rights of the elder

daughters without their presence in the party array

before the Tribunal.

23. The High Court dealt with the judgments of the High

Court of Judicature at Allahabad in SectionKundomal Ganga Ram

v. Topamal Chotamal3 and SectionMalireddi Venkatapathi and

others v. Malireddi Veerayya and others4 for the

principle that a respondent maintaining cross objection

could do so after a person affected by the cross

objection was brought on the party array and proceeded

to hold as follows in paragraphs 21 and 23:

“21. We have carefully considered
these submissions. Apart from the question
whether respondent Nos.6 and 7 had any
right in the concerned fields, it seems to
us that there was absolutely no possibility
of their rights, if any, being
prejudicially affected by inclusion of
concerned lands in the holding of appellant
No.1. It would be appellant No.1, who would
stand to lose corresponding acreage after

3 AIR 1953 Allahabd 710
4 AIR 1943 Madras 609

16
adjusting the claims of respondent Nos.6
and 7, if he was so keen to ensure that
they got what he desired to give them. The
order passed by the Tribunal was not one
directed against respondent Nos.6 and 7,
but was one which affected the rights of
the appellant. There is no similarity with
the facts of the unreported judgment in the
case of Balkrishna Maharaj Mandir, referred
to above, because in that case, Tarasingh
was a tenant, who was also a party before
the Surplus Land Determination Tribunal.

Therefore, we do not find any force in the
submissions made on behalf of the
appellants as the proxy of respondent Nos.6
and 7.

xxx xxx xxx

23. To sum up, we hold that validity
of the partition dated 31-1-1970 has not
been questioned by the Tribunal. All that
the Tribunal and the learned Single Judge
did was to take into account the fact that
lands continued to be with appellants as
there was no severance of respondent Nos.6
and 7 from appellants’ family. As for
court-fees on cross-objection, though we
disapprove observations of the Tribunal,
the defect is curable and cannot help
appellants in pocketing a chunk of land,
which should become available to the State
for distribution. Respondent Nos.6 and 7
were not necessary parties to the cross-
objection, first, because of absence of
subsisting interest in the properties, and
secondly, because appellants could be
trusted to take care of their daughters’
interests from their own property, rather
than resorting to what may be proverbially
described as “Robbing Peter to pay Paul”.
Lastly, claim for exclusion of field survey
no.106 of Sawangi, contending that the gift
dated 20-1-1955 was not actually received,

17
while at the same time taking a
diametrically opposite stand about document
dated 30-1-1970, amounts to blowing hot and
cold in the same breath.”

And on this basis the appeal came to be dismissed.

CONTENTION OF THE APPELLANTS

24. The arguments addressed by the learned senior

counsel for the appellants run thus:

There was a partition entered into and

registered on 31.01.1970. Thereunder, certain

lands have been set apart to the daughters of Shri

Vithaldas. Shri Vithaldas had three daughters and

one son besides his wife. All the three daughters

were minors as on 31.01.1970. The commencement day

is 02.10.1975. The elder daughters turned major

prior to the appointed day. Therefore, having

regard to the meaning of the words “family unit”,

as contained in Section 4 of the Act, the property

held by the elder daughters, which were acquired

under the registered partition deed dated

31.01.1970, must be excluded in calculating the

land holding by the family unit. He seeks to

18
buttress his position by pointing out that the

Legislature has fixed the cut off date after which

partition deed would be ignored for the purpose of

calculation of the ceiling limit. Indeed, Section

11 of the Act, declares that any partition after

the 26th Day of September, 1970 shall be deemed

unless the contrary is proved to have been made in

anticipation or in order to avoid or defeat the

objective of the SectionAmending Act, 1972 and shall

accordingly be ignored. Consequently, the land

covered by such partition shall, for the purpose

of this Act, be the land held by the family. The

appellants placed further store by Section (10) of

the Act which again contemplates 26.09.1970 as the

date beyond which transfers would be held to be

infirm as executed for defeating the object of the

SectionAmending Act, 1972. Section 10 of the Act further

proceeds to declare that the ceiling account will

be determined ignoring such transfers. As far as

Section 8 of the Act is concerned, it is directed

against transfer made on or after the commencement

date, viz., 02.10.1975. The explanation supplies

19
the meaning of the word “transfer” for the purpose

of this Section in a most wide manner and I need

not be detained further by the contours of the said

definition.

The argument of the appellants is that the

Legislation in question is expropriatory.

Therefore, such a Statue must be interpreted, no

doubt, by giving full play to the express

provisions but it cannot go beyond the same. In

other words, having regard to the fact that the

partition deed, at the heart of the controversy in

this case, is executed and registered on 31.01.1970

much before even 26.09.1970 and many years before

the commencement day, the partition deed must be

given full operation resultantly. Properties,

which stood allotted to elder daughters under the

partition deed, must be excluded from the account

of the family unit as by the said day, the elder

daughters had become major, and could no longer be

members of the family unit.

25. It is contended by the learned senior counsel for

20
the appellants that there is no case for the

respondent-State that the partition was a collusive

one. The further contention raised by the learned

senior counsel for the appellants is that the Tribunal

acted illegally in allowing the cross objection of the

respondent-State and thereafter holding that the

partition deed dated 31.01.1970 is to be ignored.

26. The learned counsel for the appellants has

contended that a legal fiction should not be extended

beyond the purpose for which it was created. In this

regard, appellants relied on the following case law –

SectionBihar Immunity Company Ltd. v. State of Bihar and

Others5; SectionCommissioner of Income-Tax v. Bombay City I,

SectionBombay v. Amarchand N. Shroff by his heirs and legal

Representatives6; SectionCommissioner of Income Tax, Kanpur v.

Mother India Refrigeration Industries (P)Ltd.7;

SectionBijender Singh v. State of Haryana and another8.

27. It is also sought to be contended that the purpose

of the legal fiction is to be ascertained from the

5 (1955) 2 SCR 603
6 AIR 1963 SC 1448
7 (1985) 4 SCC 1
8 (2005) 3 SCC 685

21
plain language of the provisions that creates it (SectionSee

Commissioner of Income-Tax, Delhi v. S. Teja Singh9).

28. Irrespective of how beneficial the object of the

Statute may be, the deeming fiction cannot be extended

beyond the purpose of creating the fiction (SectionSee

Mancheri Puthusseri Ahmed and Others v. Kuthiravattam

Estate Receiver10).

29. Still further, it is contended that while

interpreting the deeming fiction, recourse to the

object of the Statute would be permissible only where

the language is ambiguous (See (2009) 1 SCC 540).

There can be no quarrel with these principles.

CONTENTIONS OF THE STATE

30. Per contra, the learned counsel for the respondent-

State would seek to support the order of the High Court.

He would point out that despite and notwithstanding the

so-called partition deed dated 31.01.1970, it was the

father who continued to be in possession and to take

the income. He was equally carrying out the

9 AIR 1959 SC 352
10 (1996) 6 SCC 185

22
cultivation. Partition deed, therefore, was a ruse and

it is not to be taken into account for determining the

extent of the land and the land seemingly allotted to

the elder daughters must also be taken into

consideration which is what has been done by the

Tribunal and approved of by the High Court. He would

point out that the court must lose sight of the fact

that the Legislation is a beneficial Legislation

intended to empower the landless by endowing them with

property rights over land and the judgment of the High

Court does not warrant interference.

THE ‘ACT’: SINCE ITS ENACTMENT AND CHANGES RELEVANT TO
THE CONTROVERSY

31. It is necessary to appreciate the scheme of the

Act. SectionThe Act was enacted in the year 1961. Section

2(4) defined the appointed day as meaning “the day on

which this Act comes into force”. SectionThe Act as such came

into force on 26.01.1962. It is relevant to note that

drastic changes have been brought about subsequent to

the enactment in 1961. To understand its impact, the

provisions of Sections 3, Section4 and Section5 as originally enacted

23
are referred to here under: –

Section 3 read as follows: –

“In order to provide for the more
equitable distribution of agricultural
land amongst the peasantry of the State
of Maharashtra (and in particular, to
provide that landless persons are given
land for personal cultivation), on the
commencement of this Act, there shall be
imposed to the extent, and in the manner
hereinafter provided, a maximum limit (or
ceiling) on the holding of agricultural
land throughout the State.”

Section 4 read as follows:-

“4(1) Subject to the provisions of this
Act, no person shall hold land in excess
of the ceiling area, as determined in the
manner hereinafter provided.

Explanation.- A person may hold exempted
land to any extent.

(2) Subject to the provisions of this Act,
all land held by a person in excess of
the ceiling area, shall be deemed to be
surplus land, and shall be dealt with in
the manner hereinafter provided for
surplus land.”

Section 5 provided for the ceiling area

Chapter III in which Sections 8 and Section9 Section11 fell, is

to be noticed.

“8. No person who, on or after the
appointed day, holds land in excess of
the ceiling area, shall on or after that
day transfer or partition any land until
the land in excess of the ceiling is

24
determined under the Act;

Explanation.- In this Section “transfer”
means transfer by act of parties (whether
by sale, gift, mortgage with possession,
exchange, lease or any other disposition)
made inter-vivos; and “partition” means
any division of land by act of parties
made inter-vivos.”

The appointed day, it has been noticed was the

26th day of January, 1962.

“9. No person shall, at any time on or
after the appointed day, acquire by
transfer or partition any land, if he
already has land in excess of the ceiling
area, or land which together with any
other land already held by him will exceed
in the total the ceiling area.

Explanation.- In this section, “transfer”
and “partition” have the same meaning as
in Section 8.”

Section 12 fell under Chapter IV under Chapter

Heading Surplus Land and it provided for filing

returns.

Reference is made to the far-reaching changes which

were brought out by the Maharashtra Act No. XXI of

1975. The preamble reads as follows:

“WHEREAS, in the State of Maharashtra,
the Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961 imposed

25
for the first time, in the public interest
the maximum limit (or ceiling) on the
holding of agricultural land, and
provided for the acquisition of land held
in excess of the ceiling for distribution
thereof amongst the peasantry of the
State, and in particular, among landless
persons; and for other purposes therein
stated;

AND WHEREAS, it is now expedient to lower,
in the public interest, the maximum limit
(or ceiling) on the holding of
agricultural land in the State for making
available additional land as surplus, so
as to secure a still more equitable
distribution of land, and for the purpose
of removing economic disparities, and
thereby for assisting more effectively
landless and other persons; and generally
for the purpose of so distributing the
agricultural resources of the community
as best to subserve the common good, and
also to prevent the concentration of the
means of agricultural production and
wealth to the common detriment.”
(Emphasis supplied)

It was to come into force on such day, as it was

notified. It came into force from 19/09/1975.

32. Section 2(6A) of the Act defines the “commencement

date” to mean the 2nd Day of October, 1975.

33. “Family” is defined in Section 2 (11) of the Act:

“2(11) “family” includes, a Hindu
undivided family, and in the case of other
persons, a group or unit the members of

26
which by custom or usage, are joint in
estate or possession or residence;”

34. Section 2(14) is relied upon by the learned

counsel for the State and it defines the words “to hold

land”:

“2(14)“to hold land”, with its grammatical
variations and cognate expressions, means to
be lawfully in actual possession of land as
owner or as tenant; and “holding” shall be
construed accordingly;

35. Section 2(21) also relied on by the State defines

the word “owner”:

“2(21)“owner”, in relation to any land,
includes the person holding the land as
occupant, 4[or superior holder as defined
in the Code], or as lessee of Government,
a mortgagee-in-possession, and a person
holding land for his maintenance;”

36. Section 3(1) contains the actual prohibition in

the matter of holding land and it reads as follows:

“3(1)Subject to the provisions of this
Chapter and Chapter III, no person or
family unit shall, after the commencement
date, hold land in excess of the ceiling
area, as determined in the manner
hereinafter provided.

Explanation.–A person or family unit may
hold exempted land to any extent.”

27

37. Section 3(3) may also shed light:

“(3) Where any land–

(a) is held by a family of which a
person is a member,

(b) is held in or operated by a co-

operative society of which a
person is a member,

(c) is held by a person jointly with
others,

(d) is held by a person as a partner
in a firm

and the holding of such person or of a
family unit of which such person is a
member[including the extent of share
of such person, if any, in the land
answering to any of the descriptions
in clauses (a), (b), (c) or (d) above]
exceeds the ceiling area on or before
he commencement date or on any date
thereafter (hereinafter referred to as
the relevant date), then for the
purpose of determining the ceiling area
and the surplus land in respect of that
holding, the share of such person in
the land aforesaid shall be calculated
in the following manner :–

(i) in the land held by a family
of which the person is a
member, the share of each
member of the family shall
be determined so that each
member who is entitled to a
share on partition, shall be
taken to be holding
separately land to the
extent of his share, as if
the land had been so divided

28
and separately held on the
relevant date;

(ii) in the land held in or
operated by a co-operative
society or held jointly with
others or held by a firm,
the share of the person
shall be taken to be the
extent of land such person
would hold in proportion of
his share in the co-

operative society, or his
share in the joint holding
or his share as partner in
the firm, as if the land had
been so divided and
separately held on the
relevant date.”

38. Section 5 provides for “ceiling area”. Section

5(1) and Section5(2) reads as follows:

“5. Ceiling Area.- (1) In each of the
districts and talukas specified in column
1 of the First Schedule, for each class of
land described in columns 2, 3, 4, 5 and 6
thereof, the ceiling area shall be the area
mentioned under each such class of land
against such district or taluka.
(2) If a person, or a family unit,
holds land of only one class, the ceiling
area for his or its holding shall be the
ceiling area for that class of land.”

39. I may now note Sections 8,Section9,Section10 and Section11 of the Act,

which substituted the earlier provisions:

29
“8.Restrictions on transfer.- Where a person,
or as the case may be, a family unit holds
land in excess of the ceiling area on or after
the commencement date, such person, or as the
case may be, any member of the family unit
shall not, on and after that date, transfer
any land, until the land in excess of the
ceiling area is determined under this Act.

Explanation.–In this section, “transfer”
means transfer, whether by way of sale,
gift ,mortgage with possession, exchange,
lease, assignment of land for maintenance,
surrender of a tenancy or resumption of
land by a landlord or any other
disposition, whether by act of parties made
inter vivos or by decree or order of a
court, tribunal or authority(except where
such decree or order is passed in a
proceeding which is instituted in such
court, tribunal or before such authority
before the 26th day of September 1970), but
does not include transfer by way of sale or
otherwise of land for the recovery of land
revenue or for sums recoverable as arrears
of land revenue, or acquisition of land for
a public purpose under any law for the time
being in force.

9. Restrictions on acquisition of land in
excess of ceiling area.-

No person or a member of a family unit shall
at any time, on or after the commencement
date, acquire by transfer any land if he,
or as the case may be, the family unit
already holds land in excess of the ceiling
area or land which together with any other
land already held by such person, or as the
case may be, the family unit, will exceed
in the total the ceiling area.

Explanation.–In this section, transfer has
the same meaning as in Sectionsection 8.

30

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 Sectionsection 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
Sectionsection 8.

31
All transfers made after the 26th day of
September 1970 but before the commencement
date, 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 SectionAmending 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 Sectionsection 9, then as a
penalty therefor, 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

32
interest of the holder in some other land
of the holder equal in extent to the land
acquired in wilful contravention of Sectionsection
9, shall be forfeited to Government.

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 SectionAmending 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 provision of
Sectionsection 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.”

40. Section 12 falling in Chapter IV deals with

submission of returns and provides for submission of

returns. Section 12(1) reads as follows:

“12: SUBMISSION OF RETURNS – [If any
person or family unit –

(1)(a) has at any time after the 26th day
of September 1970 but before the
commencement date held, or

(b) on or after the commencement date
acquires, holds or comes into possession

33
of, any land (including any exempted
land), in excess of the ceiling area, or”

41. Section 14 provides for the power of the Collector

to hold inquiry:

“14. Power of Collector to hold enquiry.-
(1)As soon as may be after the expiry of
the period referred to in Sectionsection 12 or the
further period referred to in sub-section
(2) of Sectionsection 13, the Collector shall
either suo motu whether or not a return had
been filed or] 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 person2[or
family unit] holding and in excess of the
ceiling area, and shall, subject to the
provisions of this Chapter, determine the
surplus land held by such person2[or family
unit.

(2) Where a person or family unit holds
land in two or more talukas of the same
district, the enquiry shall be held by such
officer or authority exercising the powers
of the Collector whom the Collector-in-
charge of the district may by order in
writing designate.

(3) Where a person4[or family unit]
holds land in two more districts of the
same division, the enquiry shall be held by
the Collector whom the Commissioner may, by
order in writing, designate.

(4) Where a person4[or family unit]
holds lands in different divisions, the
enquiry shall be held by the Collector whom

34
the State Government may, by order in
writing, designate.5[(4A)Where a person
holding land in an industrial undertaking,
the enquiry may be held by the Collector
whom the State Government may, by order in
writing, designate].(5)The Collector so
designated, shall for the purposes of the
enquiry, be competent to exercise
jurisdiction under this Act in respect of
such person6[or family unit] and the lands
held by him[or it].”

42. Section 18 is of vital importance to consider the

question and it reads as follows:

“18. Collector to consider certain
matters.-18.On the day fixed for hearing
under Sectionsection 14, or 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
Sectionsection 10 or Sectionsection 11;

(bb) whether the holder has any share
in the land held by a family or
held or operated by any co-

35

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?

(d) whether any transfer or partition
of land is made by the[holder] in
contravention of Sectionsection 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 Sectionsection 11?]

(e) whether any land has been acquired
or possessed on or after
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
which10[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 Sectionsection 10, or of Sectionsection 13,
or should be deemed to be surplus
land under any of the provisions

36
of this Act?

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

(k) which particular lands out of the
total land held by1[the holder]
should be entitled as delimited as
surplus land?

(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.”

43. Section 21 provides that the Collector is to make

a declaration regarding surplus land, etc., after the

inquiry.

44. Section 22 provides for compensation for any land

acquired. The Section provides for the procedure and

method of payment.

45. Chapter VI comes under the Chapter heading

“Distribution of Surplus Land”.

46. Matters including the priority to be observed are

indicated.

47. Chapter VII deals with provision of appeal.

48. Section 33 provides that an appeal lies against

37
the order or award of the Collector, before the

Maharashtra Revenue Tribunal. Since it may have a

bearing on the argument based on the illegality

committed by the Tribunal allegedly in allowing the

cross objection, it is referred to and it reads as

follows:

“33. Appeals.- (1)An appeal against
an order or award of the Collector shall
lie to theMaharashtra Revenue Tribunal in
the following cases :–
(1) an order under sub-sections (2)
and (3) of Sectionsection 131[not being
an order underwhich a true and
correct return complete in all
particulars is required to be
furnished;

(2) a declaration2[or any part
thereof] under section 21;3[(2a)
an order under section 21-A;

(3) an award under Sectionsection 25;

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

(5) an order of forfeiture under sub-

section (3) of Sectionsection 29;

(6) an amendment of declaration or
award under Sectionsection 37; and
(7) an order of summary eviction under
Sectionsection 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-

38

objection to the decision, order,
declaration or award which he could
have taken by way of an appeal:

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, shall apply in
relation to the cross-objection as they
apply in relation to the cross-

objection 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 may
be, 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).”

49. The power of the Tribunal is provided under Section

34, which reads as follows:

“34. Power of Maharashtra Revenue
Tribunal to confirm, etc.-.The
Maharashtra Revenue Tribunal, in

39
deciding an appeal under Sectionsection 33,may
confirm, modify or rescind the
decision, order, declaration or award
or the amended declaration or award,
as the case may be.”

50. Section 41 bars the jurisdiction of Civil Court

and it reads 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 40uthorized under Sectionsection 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
Mamlatdar’s SectionCourt Act, 1906.(Bom.II of
1906)”

51. No doubt, Section 44(B) excludes pleaders, etc..

It reads as follow:

“SECTION 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 Authorised Officer, the Tribunal, the
Collector, the Commissioner, the State
Government or the Maharashtra Revenue
Tribunal:

40

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.”

52. Among the changes that have been ushered in the

definition clause, the following are noted: –

In Sectionsection 2, sub-Section(5A) was added and it

defined ‘Code’ to mean Maharashtra Land Revenue Code,

1966 and sub-Sectionsection 6A, which was added as the

‘commencement date’ means date on which the SectionAmending

Act, 1972, comes into force. Section 2 (11A) was

inserted and it purported to define ‘family unit’ to

mean family unit as explained in Section 4.

In Section 2(20), definition of ‘member of a

family’ was substituted and it reads as follows:-

“(20) ‘member of a family’ means father,
mother, spouse, brother, unmarried
dependent sister, divorced and dependent
sister, son, son’s wife, unmarried
daughter, divorced and dependent
daughter, sons’s son, son’s unmarried
daughter, son’s divorced and dependent
daughter.”

41
A completely different Chapter came to be inserted

as Chapter II. This was done by way of substitution of

the earlier Chapter, the Chapter contained in the Act

prior to the amendment.

53. 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 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?

POWER OF AUTHORITIES UNDER THE ACT OVER TRANSACTION
PRIOR TO 26.09.1970

54. In order to appreciate the intention of the

42
Legislature in this regard, the word “transfer” and

“partition” as employed in Section 10 and Section11 of the Act

must be understood as meaning a transfer and a

partition which is genuine. In other words, a transfer,

be it by any means, as defined under Section 8, must

actually result in the divesting of rights of the

previous owner and vesting of rights in the transferee.

The word “transfer” must be understood, as describing,

cases where under the law, by means of the devices

mentioned in the Explanation to Section 8, the previous

owner ceases to be the owner and the transferee

acquires his rights. The legislative intention was that

such transfers, which otherwise would pass muster as

genuine transactions and therefore would have the

effect of defeating the object of the Act as contained

in particular in Section 3 and the Chapter relating to

distribution of surplus land should be rendered

ineffective. The same is the position in respect of the

partition under Section 11 of the Act. Even if there

is a genuine partition by which shares are in fact

allotted to the parties and the parties enjoy the

properties as separate owners of what was previously

43
joint ownership, their rights will be subsumed and

overwhelmed by the laudable object underlying Section

3 of the Act and the prohibition would have full sway.

55. I have noticed the matters to be considered by the

Collector under Section 18 of the Act. Apart from

clauses (a) and (b), he is duty bound to ascertain

other matters. Clause (c) of Section 18 of the Act

specifically mandates that the Officer must find out

what is the total area of land held by the holder on

the commencement date. Clause (l) of Section 18 of the

Act also contemplates that the Collector may take into

consideration any other matter which in his opinion is

necessary for calculating the ceiling area inter alia.

Section 3 of the Act read in conjunction with Section

18(c) and (l), inter alia, establishes that the

Collector has power and it becomes his duty, in fact,

to ascertain what is the area held on the appointed

day, viz., 02.10.1975. I have noticed that the

Legislature has defined the words “to hold” means, “to

be lawfully in actual possession of land as owner or

as tenant”. Word “owner” is further defined to mean,

44
“in relation to any land includes a person holding the

land as occupant, superior holder as defined in the

Code, lessee of Government, as it is commonly

understood”. If the person is holding the land as

occupant, he would be an owner. The word ‘occupant’ is

defined with reference to its definition in the code.

It is noteworthy that the word ‘owner’ includes the

specified categories. If a person is owner as it is

commonly understood, then he is comprehended.

Therefore, if a person is in possession as an occupant

as on the appointed day, the extent of land so held by

him, would be considered for the purpose of calculating

the ceiling limit. Equally, if the person is in

possession as lessee of the Government, he would incur

the wrath of Section 3 of the Act, should he have land

in excess of the ceiling limit inclusive of the land

which he holds as lessee of the Government. The same

is the position with respect to a mortgagee in

possession and a person who holds land for his

maintenance.

56. The Collector, therefore, is duty bound in the

45
course of the inquiry to enquire and ascertain as to

what exactly is the holding (as defined in the Act) as

on the commencement day. In the mater of gleaning the

meaning of a Statute and demystifying the words of a

Statute and discovering the intention of the

legislation, the court must bear in mind certain

presumptions. The court will presume that the

Legislature has taken into consideration the felt

necessities of the times. It will further assume that

the Legislature was aware of the law as it exists. It

will not begin with the assumption that the Legislature

is ignorant of the opinions expressed by the courts on

points of law. It will presume that the Legislature was

aware of the decisions rendered by the courts on points

of law.

57. SectionIn Sree Meenakshi Mills Ltd., Madurai v.

Commissioner of Income Tax, Madras11, this Court had

occasion to consider what the word “benami” has come

to denote:

“30. Now, the assumption underlying
this argument is that the Tribunal had

11 AIR 1957 SC 49

46
found in its order that the intermediaries
were benamidars for the appellants, but
there is no basis for this in the order. In
this connection, it is necessary to note
that the word ‘benami’ is used to denote
two classes of transactions which differ
from each other in their legal character
and incidents. In one sense, it signifies
a transaction which is real, as for example
when A sells properties to B but the sale
deed mentions X as the purchaser. Here the
sale itself is genuine, but the real
purchaser is B, X being his benamidar. This
is the class of transactions which is
usually termed as benami. But the word
‘benami’ is also occasionally used, perhaps
not quite accurately, to refer to a sham
transaction, as for example, when A
purports to sell his property to B without
intending that his title should cease or
pass to B. The fundamental difference
between these two classes of transactions
is that whereas in the former there is an
operative transfer resulting in the vesting
of title in the transferee, in the latter
there is none such, the transferor
continuing to retain the title
notwithstanding the execution of the
transfer deed. It is only in the former
class of cases that it would be necessary,
when a dispute arises as to whether the
person named in the deed is the real
transferee or B, to enquire into the
question as to who paid the consideration
for the transfer, X or B. But in the latter
class of cases, when the question is
whether the transfer is genuine or sham,
the point for decision would be, not who
paid the consideration but whether any
consideration was paid. …”

(Emphasis supplied)

47

58. SectionIn Kalwa Devadattam and others v. The Union of

India and others12, the matter arose under Sections 25A,

Section67 and Section30 of the Income Tax Act, 1922. One of the

questions which arose was whether the partition

involved in the said case was sham. The High Court

relied upon the circumstances to find out that the deed

of partition involved in the said case, though

registered, was nominal. The object of the partition,

it was contended, was to protect the interest of the

minor sons against the father who was not even living

with the family and was acting to the detriment of his

sons. Though the deed showed apparently an equal

distribution of the property into four shares of the

same value, the property allotted to the share of

Nagappa was in reality not worth the amount shown. It

was found that the intention of Nagappa was to make it

appear to the Income Tax Department that no useful

purpose will be served by taking steps. In the course,

the Court proceeded to hold, inter alia, as follows:

“14. … The deed of partition was

12 AIR 1964 SC 880

48

undoubtedly executed and was registered,
but the mere execution of the deed is not
decisive of the question whether it was
intended to be effective. The circumstances
disclosed by the evidence clearly show that
there was no reason for arriving at a
partition. Counsel for the plaintiffs
practically conceded that fact, and
submitted that Nagappa’s desire to defeat
his creditors, and to save the property for
his sons, was the real cause for bringing
the deed of partition into existence.
Counsel claimed however that Nagappa had
adopted the expedient of effecting a
partition with the object of putting the
property out of the reach of his creditors
and the genuineness of that partition
should not be permitted to be blurred by
the unmeritorious object of Nagappa. But
the continued management of the property by
Nagappa since the partition, and the
interest shown by him in prosecuting the
suits do clearly support the inference that
the deed of partition was a nominal
transaction which was never intended to be
acted upon and was not given effect to. …”

(Emphasis supplied)

59. The Legislature, when it enacted the Act, must be

presumed to know the state of the law to be that a

transfer deed by way of a sale or lease or a mortgage,

may be nothing but a nominal and a sham transaction.

In a sham transaction, be it a sale or a partition,

though it has all the trappings of a transfer or a

partition and it may be registered as such, in effect,

49
the transferor continues to be the owner. The person

who was the previous owner, would, in the case of the

partition which is sham, continue to be the owner. A

clever camouflage or a document ingenuously disguised

as a sale or a partition, cannot be permitted to defeat

the intention of the Legislature. If the surrounding

circumstances and the actual reality behind the

transaction is objectively probed and it is established

that the transferor or the previous owner, as the case

may be, in the case of a transfer or a partition,

respectively, continued to hold the property as such

on the appointed day, it must be ignored.

60. A sham transaction demonstrated to be one when the

appointed day dawns must certainly be treated as such,

and the consequences, that are well-established in law,

must afflict such a pretense of a transfer or a

partition. Such a power must indeed vest with the

Collector under Section 18 read with Section 3 of the

Act. To deny the Collector such power as the appellants

would attempt to persuade the court to hold, would

involve asking the court to take leave of its

commonsense and to place an interpretation on the

50
Statute which will result in an absurd, besides an

unjust situation. The interpretation canvassed by the

appellants would result in defeating the object of the

Statute. The interpretation that the Legislature knows

the existing law and that the Legislature does not

waste words and further that an interpretation which,

while on the one hand, furthers the object of the

Statue, and equally importantly, is one, which the

plain language of the Statute is capable of bearing,

would persuade this Court to hold that the Collector,

when in the course of an inquiry under Section 18 of

the Act, has before it, materials to show that an

ostensible transfer or a partition is nothing but a

sham and a person or a member of the family continues

to hold the land as on the commencement day, it would

be well within his powers to act as per the mandate of

the Act and include the land for the purpose of

calculating the ceiling limit.

61. Section 30 of the Act sets out the powers of the

Collector when he holds that inquiry under the Act. It

declares that the Collector shall have same powers as

are vested in the courts under the Code of Civil

51
Procedure, 1908 (hereinafter referred to as ‘the CPC’)

in trying a suit in respect of the following matters:

(i) Proof of facts by affidavit;

(ii) Summoning and enforcing attendance of any person

and examining him on oath;

(iii) Compelling the production of documents.

Under Section 31 of the Act, the Collector is

obliged to set down reasons for his decision. Thus, the

Collector is endowed with the powers of the civil court

in the matter of both summoning and enforcing

attendance of any person. The person summoned can be

examined on oath. He has power also to compel

production of any document. For the purpose of

determining whether a document is a collusive, a

fraudulent or a sham transaction, it would indeed be

argued that the Authority to so decide must be in a

position to consider relevant evidence in the form of

deposition of witnesses as also evaluate documentary

evidence which may throw light on the matter. Such

powers are expressly conferred on the Collector and the

powers are the same as that which the civil court enjoys

52
in this regard.

62. The argument of the appellants that the remedy open

to the State would be to have a suit instituted and

invite a civil court to adjudicate and pronounce a

decree declaring a transaction as sham, does not

commend to me. The Legislature has indeed clothed the

Collector with jurisdiction and the power to determine

such questions. It would indeed amount to placing an

interpretation which would render the Statute

unworkable. On the other hand, the interpretation that

if materials exist in the form of oral or documentary

evidence, which clearly shows that the purported

transfer or partition prior to 26.09.1970 was a sham

transaction, the object of the Statute would be

furthered by allowing the Collector or other

authorities to decide the matter accordingly.

63. In Uttar Chand (supra), this Court in fact was

considering the provisions of the Act where at a time

when Sections 8, Section10 and Section12 had not been amended into

its present avtar. SectionThe Act itself exempted lands which

were acquired or transferred prior to 04.08.1959. This

was provided in Sections 8, Section9 and Section12 of the Act, as it

53
stood. In the said case, the High Court has found the

transfer to be collusive. So also, was a decree

involved in the said case under which a large extent

of land was given to his mother by the adopted son.

This Court held “there was neither any pleading nor any

case made out either before the Deputy Collector or

before the Commissioner to indicate that the transfer

of the lands in favour of the adopted son and the

transfer by Nemichand in favour of his mother, were

collusive or tainted by fraud”. The transaction had

been entered into five years before the Act was brought

into force. Thereafter, no doubt, this Court went on

to hold as follows:

“3. … Even the Act clearly exempts
lands which may have been acquired or
transferred prior to 4-8-1959. Ss. 8, 10
and 12 which deal with the subject clearly
enjoin that only those transfers would be
hit by the Act which are made at any time
on or after 4-8-1959. As both the transfers
mentioned above were prior to 4-8-1959, it
is obvious that they fell completely
outside the ambit of the provisions of the
Act. The High Court was thus not justified
in presuming that the transfer made by the
appellant in favour of his adopted son and
the transfer by the adopted son Nemi Chand
to his mother were either collusive or
fraudulent. There was neither any

54
foundation in the pleadings nor any
evidence to support this conjecture of the
High Court.”
(Emphasis supplied)

64. This was in fact a case where the finding of the

court is based on there being no foundation in the

pleadings nor any evidence to support the finding that

the transactions were collusive or tainted by fraud.

The transactions had taken place a good five years

before the Act came into force. On a proper

appreciation of the decision, though it may be

contended that the decision should be understood as

declaring that a transaction, even if it is collusive,

having been entered into prior to the cut off date, it

cannot be impeached, it may not be the correct way of

looking at the decision. If there were pleadings or

material to support the finding that it was collusive,

the decision of this Court may not have been the same.

There being no material to find that the transaction

was either collusive or fraudulent, necessarily the

transfer being genuine, there was no provision in the

Act which extended to invalidate the transaction

55
entered into five years prior to the Act.

65. Section 41 of the Act bars the jurisdiction of a

civil court with respect to any matter which is to be

settled, decided or dealt with by the authorities under

the Act including the Collector and the Tribunal. In

this view, the bar under Section 44(B) would be

insufficient to deprive the authority of power to

declare a sham transfer as such.

66. Another argument raised by the appellants is that

the partition cannot be impeached on the ground that

properties are allotted to the daughters when under the

prevalent law the daughters did not have any right to

a share. If at all, anybody could impeach the said

partition, it would be only the affected parties, viz.,

the persons who are legitimately entitled to a share

in partition. This would be for the reason that they

would be affected parties as their legitimate share

would be illegally reduced as a result of giving

properties by way of a share to those who are not

legally entitled to the same, viz., the unmarried

daughters. The persons who would be entitled to share

in a partition would be the father and the son besides,

56
no doubt, the wife. Strangely, the wife is not given

any share in the partition. Therefore, the argument is

that those sharers whose share would suffer diminution

by the partition alone could possibly question it. This

argument is liable to be rejected. It is one thing to

say that a sharer whose shares may be affected, could

question it in the appropriate forum. It is, however,

a far cry from maintaining that the Competent Authority

under the Act, when it has before it, evidence which

points to the transaction being a sham or collusive

affair, is disabled from finding it to be so. If one

proceeds on the basis that the transaction was sham,

the persons who would benefit from the sham transaction

would be the other sharers. In the facts of this case,

viz., the father, the wife and the son.

67. This is for the reason that it is implicit in the

finding that in the transaction of sham that there is

no effective transfer. The properties would continue

to be held by the father. The daughters would not get

any effective share. The other sharers, who would

ordinarily have challenged the transaction, viz., the

wife and the son, would be themselves beneficiaries

57
under the transaction and they cannot be expected to

challenge the transaction. Acceptance of the argument

of the appellants would result in parties defeating the

Act by setting up a pretense and wearing a cloak and

this cannot be permitted.

68. 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 Section11 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

58
or a partition, needless to say, it would incur the

wrath of Sections 10 and Section11 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

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.

WHETHER THE PARTITION ALLOTTING SHARES TO THE DAUGHTERS
WAS UNNATURAL AND SHAM

69. The further question which arises for

consideration is whether in the facts of this case, any

interference is called for proceeding on the basis that

there is power to find that the transaction is a sham.

59
This question resolves itself into two further

questions. Firstly, what is the effect of the Tribunal

entertaining the cross-objection by the State when the

two elder daughters of Vithaldas, to whom properties

were allotted in the partition, were not parties?

Secondly, whether the circumstances in which the

partition was entered into and the material were

sufficient for the High Court to uphold the findings

by the Tribunal.

Taking the second question first, the very first

aspect which stands out is the finding that the

partition is unnatural. It is dubbed unnatural for the

reason that under the extant Hindu Law, daughters were

not entitled to a share. No doubt, in Maharashtra,

Section 29A has been inserted in the SectionHindu Succession

Act, 1956 with effect from 1994. It reads as follows:

“29A Equal rights to daughter in
coparcenary property. — Notwithstanding
anything contained in Sectionsection 6 of this
Act—

(i) in a joint Hindu family governed by
Mitakshara Law, the daughter of a
coparcener shall by birth, become a
coparcener in her own right in the same
manner as the son and have the same rights
in the coparcenary property as she would
have had if she had been a son, inclusive

60
of the right to claim by survivorship;

and shall be subject to the same
liabilities and disabilities in respect
thereto as the son;

(ii) at a partition in such a joint Hindu
family the coparcenary property shall be
so divided as to allot to a daughter the
same share as is allotable to a son:

Provided that the share which a pre-

deceased son or a pre-deceased daughter
would have got at the partition if he or
she had been alive at the time of the
partition shall be allotted to the
surviving child of such pre-deceased son
or of such pre-deceased daughter:

Provided further that the share allotable
to the pre-deceased child of a pre-

deceased son or of a pre-deceased
daughter, if such child had been alive at
the time of the partition, shall be
allotted to the child of such pre-

deceased child of the pre-deceased son or
of the pre-deceased daughter as the case
may be;

(iii) any property to which a female
Hindu becomes entitled by virtue of the
provisions of clause (i) shall be held by
her with the incidents of coparcenary
ownership and shall be regarded,
notwithstanding anything contained in
this Act or any other law for the time
being in force, as property capable of
being disposed of by her by will or other
testamentary disposition;

(iv) Nothing in clause (ii) shall apply
to a daughter married prior to or to a
partition which had been effected before
the commencement of the Hindu Succession
(Andhra Pradesh Amendment) Act, 1986.

61
The next aspect considered relevant for holding

the partition unnatural is that the wife of Shri

Vithaldas was entitled in law upon a partition to a

share but she is not given any share. The further

finding is that Vithaldas continued to be in effective

cultivation of the land, and in this regard, the record

of rights was relied upon.

70. The further aspect, which has been enlisted in

support of its finding, is the fact that the minors

were represented by their grandfather though the

natural guardian, viz., Vithaldas, was very much alive.

It is the case of the appellants that giving a share

to the daughter cannot be impugned as done. Under the

Hindu Law, daughters were entitled to maintenance and

if the share is set apart to the daughters in lieu of

same, it could not be questioned.

The appellants further contended that the two elder

daughters were minors at the time of partition. They

attained majority only in the year 1973 and 1975 but

before the commencement day.

71. There is nothing unnatural if the father

62
cultivates the property on behalf of the daughters. The

finding by the Authorities, approved by the High Court,

that the daughters did not have the resources to

cultivate the land, not only pales into insignificance,

but the Authorities/Courts have not appreciated the law

correctly.

A BRIEF SURVEY OF CERTAIN ASPECTS OF HINDU LAW

72. SectionIn State of Maharashtra v. Narayan Rao Sham Rao

Deshmukh and others13 the case arose under the very Act

the Court is concerned with, and therein upon the death

of a male leaving behind him his widow, mother and his

son [the respondent therein], the High court held that

after the death of the Karta the joint family continued

but each one of the three were entitled to a separate

unit of ceiling area. This Court took the view that a

female member who inherited the interest under Section

6 of the Hindu Succession Act did not cease to be a

member of the family. The Court inter alia held as

follows:

“7. As observed in Mayne on Hindu Law and
Usage (1953 Edn.) the joint and undivided
13 AIR 1985 SC 716

63
family is the normal condition of a Hindu
society. An undivided Hindu family is
ordinarily joint not only in estate but in
food and worship but it is not necessary
that a joint family should own joint family
property. There can be a joint family
without a joint family property. At para
264 of the above treatise it is observed
thus:

“264. It is evident that there can be
no limit to the number of persons of
whom a Hindu joint family consists, or
to the remoteness of their descent from
the common ancestor, and consequently
to the distance of their relationship
from each other. But the Hindu
coparcenary is a much narrower body…
For, coparcenary in the Mitakshara law
is not identical with coparcenary as
understood in English law: when a member
of a joint family dies, ‘his right
accresces to the other members by
survivorship, but if a coparcener dies,
his or her right does not accresce to
the other coparceners, but goes to his
or her own heirs’. When we speak of a
Hindu joint family as constituting a
coparcenary, we refer not to the entire
number of persons who can trace descent
from a common ancestor, and amongst whom
no partition has ever taken place; we
include only those persons who, by
virtue of relationship, have the right
to enjoy and hold the joint property,
to restrain the acts of each other in
respect of it, to burden it with their
debts, and at their pleasure to enforce

64
its partition. Outside this body, there
is a fringe of persons possessing only
inferior rights such as that of
maintenance, which however tend to
diminish as the result of reforms in
Hindu law by legislation.”

8. A Hindu coparcenary is, however, a
narrower body than the joint family. Only
males who acquire by birth an interest in
the joint or coparcenary property can be
members of the coparcenary or coparceners.
A male member of a joint family and his
sons, grandsons and great grandsons
constitute a coparcenary, A coparcener
acquires right in the coparcenary property
by birth but his right can be definitely
ascertained only when a partition takes
place. When the family is joint, the extent
of the share of a coparcener cannot be
definitely predicated since it is always
capable of fluctuating. It increases by the
death of a coparcener and decreases on the
birth of a coparcener. A joint family,
however, may consist of female members. It
may consist of a male member, his wife, his
mother and his unmarried daughters. The
property of a joint family does not cease
to belong to the family merely because
there is only a single male member in the
family. (SectionSee Gowli Buddanna v. CIT [(1966)
3 SCR 224 : AIR 1966 SC 1523 : (1966) 60
ITR 293] and SectionSitabai v. Ram
Chandra [(1969) 2 SCC 544 : AIR 1970 SC
343 : (1970) 2 SCR 1] .) A joint family may
consist of a single male member and his wife
and daughters. It is not necessary that

65
there should be two male members to
constitute a joint family. (See N.V.

Narendranath v. CWT [(1969) 1 SCC 748 : AIR
1970 SC 14 : (1969) 3 SCR 882 : (1969) 74
ITR 190]………………….”
(Emphasis supplied)

Women were not co-parceners under the extant law.

In this regard, the following discussion in Mayne’s

Hindu Law and usage, sheds light.

“Women not coparceners.- It is obvious
that, on the twin principles of a right
vested by birth in the male issue only and
of unobstructed heritage, the conception of
a Mitakshara coparcenary is a common male
ancestor with his lineal descendants in the
male line, and that the female members of
the family who have no vested right by birth
and come in only as heirs to obstructed
heritage (Sapratibandha Daya) cannot be
copaceners, with the male members though,
along with the males, or in exceptional
cases by themselves, they are members of
the undivided family as a corporate body.”

73. It is to be noticed that partition can be of

property which is previously held jointly. Mayne’s of

Hindu Law states as follows:

      “436.Coparcenary       property         alone
divisible.- First the property to be

66

divided by ex vi termini the property which
has been previously held as joint property
in coparcenary”.

COPARCENARY PROPERTY ALONE IS PARTIBLE.

74. In para 442 the learned author has dealt with the

persons entitled to a share under the heading Share for

women. The following is the discussion in regard to

wives.

“453.Shares for women.-The interest of the
women of the family, whether wives, widows,
mothers or daughters, where a partition
took place at the will of others were
specially safeguarded by the Sanskrit
writers.

Wife.-Yajnavalkya says: “If he(father)
makes the allotments equal, his wives to
whom stridhana has been given by the
husband or the father-in-law must be made
partakers of equal portions”. Explaining
this text, the Mitakshara says: “When the
father, by his own choice, makes all his
sons partakers of equal portions, his wives
to whom peculiar property had not been
given by their husband or by their father-
in-law, must be made participants of shares
equal to those of sons. But if separate
property have been given to a woman, the
author subsequently directs half a share to
be allotted to her: “Or if any had been
given, let him assign the half”.”

67

75. A wife however could not demand a partition. The

share of the wife under the Mitakshra law has been

dealt with as follows in Mayne’s Hindu Law:

“455. Wife – A wife however could never
demand a partition during the life of her
husband, since, from the time of marriage,
she and he are united in religious
ceremonies. This is in accordance with the
fundamental rule of Hindu law as stated in
the text of Harita as quoted by the writers:
“There can be no partition between husband
and wife”.

Wife’s share under the Mitakshara law.-
According to the Mitakshara law prevailing
in States other than Madras, a wife is
entitled on a partition between her husband
and his sons to a share equal to that of a
son; but she cannot enforce a partition.
She may either be the mother or the step-

mother of the sons. She can sue for her
share where there has been a partition and
she has not been assigned any share,
provided there was no waiver of her rights
or acquiescence on her part.”

Women could not enforce partition. This was a

right which was conferred upon the males

“458. Women cannot enforce partition.-

Neither the wife, nor mother nor
grandmother is entitled to enforce a
partition; the sons have a perfect right to
remain undivided as long as they choose.
Any alienation of property made by the
coparceners without their consent will
therefore bind the wife, mother or
grandmother as they do not become owners of

68
any shares till an actual division of the
joint estate.”

76. Regarding the rights of daughters, in Mayne’s Hindu

Law, it is stated as follows:

“461. Rights of daughters. -Where a
partition takes place during the life of
the father, the daughter has no right to
any special apportionment. She continues
under his protection till her marriage; he
is bound to maintain her and to pay her
marriage expenses, and the expenditure he
is to incur is wholly in his discretion.
But where the division takes place after
the death of the father, the same texts
which direct that the mother should receive
a share equal to that of a son, direct that
the mother should receive a share equal to
that of a son, direct that the mother should
receive a fourth share.”

77. The father, no doubt had the power under the

Mitakshra Law to effect a partition even if the sons

did not agree to the same.

“471.Father’s power to effect a partition.-
A Hindu father under the Mitakshara law
can, it has been held, effect a partition
between himself and his sons without their
consent and this is rested on the
Mitakshara I,ii,2. This text has been held
to apply not only to property acquired by
the father himself but also to ancestral

69
property. The father has power to effect a
division not only between himself and his
sons but also between the sons inter se. So
also it would seem that he has the power to
make a division when the sons are dead and
his grandsons along are living.

The power extends not only to effecting a
division by metes and bounds, but also to
a division of status. In all these cases,
the father’s power must be exercised bona
fide and in accordance with law; the
division must not be unfair and the
allotments must be equal.”

THE LAW RELATING TO GIFTS BY A HINDU TO HIS DAUGHTER

78. In the decision in Annivillah Sundaramya v. Cherla

Seethamma and others14, the Court was concerned with

the gift of 8 acres of ancestral land by a Hindu father

to his daughter after her marriage when the family

possessed 200 acres. The gift of 8 acres was not

unreasonable. In the above scenario it was found that

if the father had enforced a partition, he would have

admittedly got not less than 100 acres. SectionIn Pugaria

Vettoramal and another v. Vettor Gounder, Minor, by his

14 1911 (21) MLJ 695

70
next friend and mother Poochammal and another15, a

Division Bench of the Madras High court elaborately

considered the matter relating to gifts in favour of

daughter of a coparcener. In the said case, in fact,

the gift was made by paternal uncle in favour of his

niece (brother’s daughter). In the course of its

discussion, the court held as follows:

“We have however, no doubt that a gift made by a

father to his own daughter or a daughter of an

uncle, provided it be of a reasonable amount is

valid as against his son and that the question is

really covered by authority.”

Thereafter, the question arose about the

quantum of the gift involved in the said case. It

be noted that the gift was of land worth Rs.400

and the family property at the time of gift was

worth Rs.2400/-. Therefore, it constituted one-

sixth of the property in the hands of the donor.

The Court proceeded to hold as follows:

“The question whether the gift should
be set aside on the ground of its being
excessive presents more practical

15 1912 (22) MLJ 321

71
difficulty. The text of Yajnavalkya in
Chapter I, Section 7, PI. 5, .of the
Mitakshara as interpreted by
Vignaneswara defines the share of a
daughter as one-fourth of what she would
be entitled to if she were a son. The
Smrithi Chandrika, in Chapter IV, cites
a text of Katyayana which says: "For the
unmarried daughters a quarter is
allowed and three parts for the sons,
but where the property is small, the
portion is considered to be equal. The
author of the Smriti Chandrika says
(Placituin 28): " The meaning of the
fourth or last portion of the above
text, para 26, is that where the estate
is small the share of each sister is
considered by Vishnu and others as being
equal to that of a son. Reference has
already been made to the observation of
Vignaneswara in his commentary on
slokas 175 and 176 of Yajnavalkya that
it is the duty of a father to provide
for his daughters as well as for his
sons. The text of Yajnavalkya defining
the share of the daughter is no longer
legally in force though it would afford
a guide in determining whether any
particular gift which is impeached is
reasonable or not. As observed in the
Viramitrodaya in the text cited in
SectionBachoo v. Mankorebai16 the gift should
be guided by propriety but not by
caprice. It would be hardly right to lay
down the hard and fast rule that nothing
more than a fourth share of what the
daughter would get if she were a son can
be given in any case as apparently
attempted to be done in Damodar Misser
v. Senabutty Misrain 17. The social

16
(1904) 29 Bo.51
17
(1882) 8. Cal. 537

72
condition existing at the time of the
gift would be a proper matter to be
taken into account; and where the
property is very small and the expenses
of marriage heavy in the community of
the parties, it may not be improper to
allot a share equal to that of the son
for the expenses of marriage and for
dowry together. At the same time, where
the property is very large, worth say
several lakhs of rupees, the courts may
not be prepared to uphold a gift of the
share permissible according to the text
of Yajnavalkya. The right of the
daughter not being confined, as pointed
out in Rantasami Ayyar v. Vengidusami
Ayyar18 and SectionChuramon Sahu v. Gopi Sahu
I.L.R.19 to have the expenses of her
marriage defrayed, it might be
reasonable to allot something more than
such expenses even where they are
comparatively heavy. At the same time,
it would not be fair to the sons that
the father, after spending a large
amount on the marriage of his daughter,
should make a gift of any considerable
property to her. It must also be borne
in mind that it would be unfair to the
daughter that she should be told that
her claim has been absorbed by excessive
expenditure on marriage contracted by
members of the family not for her
benefit but to enable the co-parceners
to maintain their social prestige. SectionIn
Churamon Sahu v. Gopi Sahu (supra), the
Calcutta High Court upheld the gift of
one-third of the family property on the
occasion of the dwiragaman ceremony.

The learned Judges observe that the
question must be determined with regard

18
(1898) 22 Mad.113
19
(1909) ILR 37 Cal.1

73
to the circumstances of each particular
disposition. They refer to a case
reported in 2 Morley's Digest, 198, and
cite the observation of Lord Gifford in
that case that it was absolutely
impossible to define the extent and
limit of the power of disposition
because it must depend upon the
circumstances of the disposition
whenever such disposition shall be made
and must be consistent with the law
regulating such dispositions. SectionIn
Anivillah Sundararatnayd v. Cherla
20
Sitamma another principle is
indicated. The learned Judges say : "
Here if the father had enforced a
partition, he would have admittedly got
not less than one hundred acres and it
is impossible to say that a gift of 8
acres is unreasonable." We are
unwilling to adopt this test based upon
the father's right to dispose of what
he gets for his own share on partition
for deciding the question what
disposition he might make while
remaining a member of an undivided
family. We think it must be left to the
court in each case to decide whether the
gift is reasonable in all the
circumstances under which it is made.
In this case, the donor, at the time of
the gift, had only one son, and he was
an infant. The share given to the 1st
defendant was one-sixth of the whole.

It was apparently considered by the
donor that the property still left to
the family would have time to increase
before his son would have to support a
family. He died undivided from his son,
and apparently never wished to be
divided from him. One eighth share of

20
(1911) 21 MLJ 956

74
the property would be a suitable portion
for the 1st defendant under such
circumstances according to
Yajnavalkya's text. What was given was
one-sixth or one-twenty-fourth more,
worth Rs. 100. We are not prepared to
say that, an excessive portion of the
property was given.”

(Emphasis supplied)

79. SectionIn Annamalai Ammal v. Sundarathammal and Others21,

the High Court took note of the fact that there were

concurrent findings that the property gifted was a very

reasonable portion of the property and the gift was

found valid.

The question fell for consideration of this Court

in the decision reported in Guramma Bhratar Chanbasappa

Deshmukh and others v. Mallappa Chanbasappa and

another22. Therein, this Court after an elaborate survey

of decisions including the decisions referred to by me,

held as follows: -

“18. The legal position may be
summarized thus: the Hindu law tests
conferred a right upon a daughter or a
sister, as the case may be, to have a share
in the family property at the time of

21 AIR 1953 Madras 404
22 AIR 1964 SC 510

75
partition. That right was lost by efflux of
time. But, it became, crystallized into a
moral obligation. The father or his
representative can make a valid gift, by
way of reasonable provision for the
maintenance of the daughter regard being
had to the financial and other relevant
circumstances of the family. By custom or
by convenience, such gifts are made at the
time of marriage, but the right of the
father or his representative to make such
a gift is not confined to the marriage
occasion. It is a normal obligation and it
continues to subsist till it is discharged.

Marriage is only a customary occasion for
such a gift. But the obligation can be
discharged at any time, either during the
lifetime of the father or thereafter. It is
not possible to lay down a hard and fast
rule, prescribing the quantitative limits
of such a gift as that would depend on the
facts of each case and it can only be
decided by courts, regard being had to the
overall picture of the extent of the family
estate, the number of daughters to be
provided for and other paramount charges
and other similar circumstances. If the
father is within his rights to make a gift
of a reasonable extent of the family
property for the maintenance of a daughter,
it cannot be said that the said gift must
be made only by one document or only at a
single point of time. The validity or the
reasonableness of a gift does not depend
upon the plurality of documents but on the
power of the father to make a gift and the
reasonableness of the gift so made. If once
the power is granted and the reasonableness
of the gift is not disputed, the fact that
two gift deeds were executed instead of
one, cannot make the gift anytheless a
valid one”.

76

80. A Joint Hindu Family would consist of a large

number of persons. A Joint Hindu Family could, however,

be understood to be a narrower body of individuals that

constitutes a coparcenary. The coparceners, at the

relevant point of time, consisted of males, viz., son,

grandson and the great grandson. They were persons who

were entitled to demand partition. When a partition

took place, however, certain other persons were also

entitled to share in the property. It must be

remembered that a partition involves separate enjoyment

and what was previously jointly held property. A wife

of a Hindu while not a coparcener was one such person

who was entitled to a share in the partition. But even

when a partition took place, the daughter of a person

was not a person who was entitled to any share.

In order to appreciate the contentions, it is

necessary to advert to the relevant portions of the

partition deed dated 31.01.1970:

“Partition deed of immovable property at
Rs.500/-

Partition deed of the land situated at
Mangrul and Babhulagaon

77
Executants: 1. Vitthaldas Jagannath
Khathri, age 39 years,

2. Anilbabu Vitthaldas
Khatri, age 4 years,

3. Ku. Shakuntala d/o.

Vitthaldas Khatri, age 14
years,

4. Ku. Durgadevi d/o.

Vitthaldas Khatri, age 11
years.

5. Ku. Beladevi d/o.

Vitthaldas Khatri, age 8
years.

Party No.2,3,4,5 being minors
represented by Guardian
grandfather Jagannath
Ganeshdas Khatri, age 65
years.

Occu. Of all: Agriculture, all
r/o. Mangrul Navghare,
Tq.Chikhali, Dist. Buldhana.

We execute kept the partition
deed as under:-

We all are the members of the HUF
and party No.2 to 5 are the issues
of part No.1 and party No.3,4,5
are the sisters of the party No.2
and party No.2 is the brother of
party No.3,4,5. We have been using
our property jointly. Party No.2
to 5 have to take the education
and to see that each of them take
it freely and to provide for the
expenses therefore and to see that
each of them will meet the

78
expenses out of their own property
and that no dispute took place
between them in future, therefore,
we are executing and keeping with
us this deed of partition. The
property fall on the share of each
party is shown in front of his
name….

xxx xxx xxx xxx
In this way we have partitioned
over estate, the property fallen
to the share of party have taken
its possession and became the full
owner thereof. Now nobody is
concerned with the property of
others. Out of us for the
education and marriage purpose of
party no.2 to 5 and for the
benefits of our family and for the
successful future, we of our free
will and consideration executed
and kept this deed of partition,
on this 31st day of January, 1970.

xxx xxx xxx xxx”

81. To the share of party no.1, namely, late

Vithaldas, an extent of 23.01 acres in Sy.No.9 of

Bhabulgaon village is set apart. Further, in Sy.No.14

Bhabulgaon village 9 acres out of 35.12 acres is also

allotted to Vithaldas. Thus, a total of 32.01 acres

is given to him. In favour of his only son, who is

aged 4 years and who is the third appellant before us,

79
an extent of 30 acres 64 ares is seen set apart. The

appellant no.1 (eldest daughter), who is the eldest

child and who was aged 14 years, was given 17 acres and

23 ares. An extent of 14 acres and 6 ares is set apart

to the second appellant before us from out of Sy.No.14

Babulgaon out of 35.12 acres who is again the other

daughter of Vithaldas and aged 11 years at that time.

The fifth party to the partition deed Kumari Beladevi

aged 8 years is given 14 acres and 06 ares from Sy.

No.14 Babulgaon out of 35.12 acres. Thus, it can be

seen that from the partition deed itself that the

extent of land made subject matter of partition was 106

acres. This is apart from the land which was the subject

matter of the gift in favour of the wife of Vithaldas

who is made a proforma respondent before this Court.

82. Vithaldas was the karta of a Hindu Undivided

Family (HUF). The Coparceners were Vithaldas and his

son. Vithaldas, as father, had the unilateral right

to partition the joint family property. The law,

however, attached a condition to the exercise of such

unilateral power that the partition must be fair.

80
Fairness cannot be present when it is made in complete

derogation of the extant law relating to share of

parties on a partition.

83. The terms of the partition deed have been set out.

The first thing that is a striking feature in the

partition deed is the exclusion of the wife of

Vithaldas. In fact, under the Act as it stood in 1970,

Section (8) interdicted a partition by a person who on

or after the appointed day (26-01-1962), had excess

land till the matter was determined. The word ‘person’

was defined to include a family. Family included a HUF.

If the property of 60 and odd acres found held by the

wife was reckoned, on 31-1-1970, as the member of

family as defined included the spouse, and as the

family holding would have crossed 114 acres, the

maximum limit in Buldana District, the partition may

have been in the teeth of Section (8) as it stood before

substitution by Act XXI of 1975. No doubt, I may notice

that she was gifted 60 and odd acres by her father and

husband from out of the joint property by gift deed

dated 20.1.1955. However, when the family partition

took place, her right may continue. If the wife under

81
the Hindu Law, when a partition is effected, was

entitled to a share, the fact that she is not given any

share, does raise a suspicion. The father got 32 and

odd acres. The son is given 30 acres. Most importantly

the daughters who had no right are seen given a total

of 45 acres and 35 ares. The daughters together got

1½ times the share of the son! Any property, which went

to the wife, would have been liable to be included in

the account of the family for the purpose of

determining the ceiling limit. It is no doubt true that

there was no concept of family unit at that time but

family as a person was subject to the ceiling limit. I

have noticed the age of both appellants nos. 1 and 2

before us. They were 14 years and 11 years,

respectively. The son, in fact, was merely 4 years old

and the youngest daughter 8 years. The statement in the

partition deed that the parties have been using their

properties jointly itself, is suspect as none of the

daughters had any legal right in the properties. The

circumstances which stand against the document namely

the partition being a genuine transaction are:

82

1. The age of the children being 4, 8, 11 and 14

years.

2. The wife of the Vithaldas not being given any

share.

3. The children being represented by their

grandfather as a guardian when the parents are

alive.

4. Allotment of shares to the daughters when daughters

did not have any right to share in the partition

of a Hindu Undivided Family at that point of time.

Out of a total of 106 acres, 45 acres and 35 ares

can by no stretch of imagination be treated as

‘small’ or ‘reasonable’. While it may be true that

after 1994, a Hindu daughter in Maharashtra had

been recognized as a coparcener vide Section 29A

of the Hindu Succession Act, 1956 and entitled to

a share as such, the question to be posed and

answered is whether such right existed in 1970 when

the partition was entered into. The answer can only

be in the negative.

83

84. No doubt, as held by this Court in the decision

supra, it was open to a Hindu to make a gift of a small

portion or a reasonable portion of his daughter. In

fact, there is a line of thought that though styled as

partition it could be held to be a gift in the absence

of a pre-existing right.

85. The question in this case is not whether a gift

could have been validly made or not by Vithaldas to

his elder daughters. It is to be noted that there is

no such case expressly set up that what was the

effected under the partition was a gift or that

Vithaldas intended to make a gift of the properties in

question to the elder daughters. Though it is stated

in the reply to the cross objection that the

nomenclature is immaterial one, what was intended

therefrom is clear from the next sentence. “The factum

of possession and cultivation is material one”. No

case of it being a gift is set up before the Tribunal

or the High Court. It is to be remembered that

definition of ‘member of family’ under the Act included

dependent daughters. In the Special Leave Petition,

in ground (I), it is stated as follows: -

84
“Because the Hon’ble Division Bench
has merely confused the whole issue
where at Para 9 it has observed that
the Vithaldas could have gifted the
property to his two daughters i.e.
Shakuntala and Durga but that too
would not have mattered till the
time the said daughters continued to
be part of his family.

It is submitted that the said
observation clearly goes beyond the
intention and nature behind the said
transfer which, was merely a
partition in the lines of a family
settlement.”

By no yardstick can the circumstances be treated

as either legal or natural. I may also notice that in

the context of a family arrangement a Bench of 4

learned Judges in the decision reported in SectionPotti

Lakshmi Perumallu v. Potti Krishnavenamma23, inter

alia, held as follows:

“7. No doubt, a family arrangement
which is for the benefit of the family
generally can be enforced in a Court of
law. But before the court would do so it
must be shown that there was an occasion
for effecting a family arrangement and that
it was acted upon. It is quite clear that
there is complete absence of evidence to
show that there was such an occasion or the

23 AIR 1965 SC 825

85
arrangement indicated in the will was acted
upon.”

86. I would also think that no acceptable reasons are

forthcoming as occasion warranting such a partition

apart from its illegal and unfair terms.

87. SectionIn Made Couda and Ors. v. Chenne Gouda and Ors.24,

the appellant was the uncle of the second defendant

who was his nephew (his sister’s son). Under a

partition, a share was purported to be allotted to the

nephew. The District Munsif found that the nephew got

a share as a gift or in consideration of surrender of

part of the property to the appellant. The value of

the property being more Rs.100/-, whether it was a

gift or an exchange. It offended against, the

provisions of SectionTransfer of Property Act. The first

appellate Court took the view that it was not a gift

but a partition and the nephew was made a co-sharer.

The learned Judge set aside the findings and remitted

the matter back to consider whether any valid title

has been acquired independent of the point decided in

the judgment. The learned Court took the view that a

24 AIR 1925 Madras 1174

86
person could not by mere recognition as a co-sharer by

another co-sharer acquire title without complying with

the provisions of the SectionTransfer of Property Act.

88. SectionIn Ponnu and another v. Taluk Land Board, Chittur

and others25, though rights were purported to be

conferred upon his son under a partition deed, it was

contended before the authority that it may be treated

as gift. It is to be noted that to be a valid gift

not only there must be registration but there must be

attestation by two witnesses. [See Section 123 of the

Transfer of Property Act]. It is further relevant to

notice that in the said judgment the property was the

separate property of the father which undoubtedly, he

could gift. The gift under the Kerala Land Reforms

Act had the effect of reducing the extent of land from

the account of the declarant. In the facts of this

case however, apart from the fact that the question

which arises is whether the partition was a sham?, It

is to be noted that there is no case that the property

25 (1981) KLT 780

87
was the separate property of Vithaldas. There can no

dispute that the property was an ancestral property

which he acquired in terms of the earlier partition

between him and his father. Even before this Court it

is not maintained that the partition is to be construed

as a gift.

89. The question, however, relevant to this case is

this. Apart from the partition deed being unnatural,

was it a sham transaction? The finding that the

transaction is unnatural apart from raising serious

suspicion effortlessly opens the doors to a finding of

it being sham. Ordinarily, in the case of sham

transaction its terms deceptively disguise the

underlying truth. The task become uphill when the

transaction appears natural, to prove it to be a sham

transaction. But when the transaction itself is

unnatural, the task of the court is made lighter.

90. It is true that there is no express pleading in

the cross objection that the transaction is sham and

that Vithaldas continued to hold the land as on

2.10.1975. In Uttar Chand (supra), this Court, in

88
fact, has pointed out to the lack of pleading to

support the finding that transaction involved in the

said case was a collusive one. In fact, it may be

noticed that under the Act what is contemplated is

filing a return by the person or family unit having

surplus land followed by an inquiry under Section 14

read with Section 18 and the declaration under

Section 21. The earlier proceedings which has taken

place in this case has not been produced. Be that as

it may, the State has filed cross objection in the

appeal. The contents of the said cross objection in

relation to the partition deed has also been noticed.

91. I would think that in the facts of this case, the

finding that there is no transfer of the interest of

Vithaldas under the partition deed is what is

essentially involved. In facilitating such a finding,

the unnatural nature of the partition has played a

large part. In the facts, the mere fact that it is not

expressly stated that he continued to hold the land or

that the transaction was a sham transaction by itself

may not be fatal to the case of the State though

89
ideally it should have been mentioned. The parties

have proceeded before the Tribunal and the High Court

understanding the purport of the pleadings in the cross

objection to be that there is no effective transfer

under the partition.

THE MATERIALS RELIED ON IN THE ORDER OF THE TRIBUNAL
IN REGARD TO THE FINDING ABOUT THE PARTITION DEED

92. The Tribunal notes that the eldest among the

daughters Shakuntala Bai was born on 03.11.1955. The

second of the elder daughters Durga Devi was born on

29.08.1957. They were 14 and 12½ years of age on the

date of the partition in 1970. Vithaldas continued to

be the owner as the title has not passed by a legally

valid instrument. As regards the actual possession in

regard to Survey Nos.14 and 12 of Babul Gaon in which

the elder daughters were allotted the shares, it was

found as follows:

“15. As regards the actual possession of
S.Nos. 14 and 12 of Babulgaon, the crop-

statements in respect of S.No.14 for the
year 1970-71 and 71-72 shows the
cultivation of Vithaldas, while during
1972-73 to 74-75 it is shown as jointly
cultivated by Vithaldas and his daughter
Durgadevi. S.No.12 of Babulgaon is shown

90
as cultivated during 1974-75 by Vithaldas
alongwith his daughter Shakultala. The
crop statement for the other years have
not been filed by the appellant. It is
ludicrous to think that these minor
daughters would possess the necessary
where withal to cultivate the land
independently. I have therefore no
hesitation to hold that the appellant
Vithaldas was holding S.No.12 area 17
acres 23 Gs and S.No.14 area 14 As 6 Gs
of Babulgaon, shown to have been
transferred to his daughters Shakuntala
and Durgadevi.”

THE ORDER DATED 23.11.2016 PASSED BY THIS COURT AND
ADDITIONAL AFFIDAVIT BY THE SON OF VITHALDAS

93. On 23.11.2016, this Court passed an order which

reads as follows:

“The legal representatives of the
deceased appellant¬ Vithaldas Jagannath
Khatri appear to have placed reliance
upon a document purporting to be a deed
of partition of certain agricultural land
in support of their contention that they
had acquired ownership over the disputed
land long before the effective date under
the provisions of the Maharashtra
Agricultural Land (Ceilings on Holdings)
Act, 1961. While a copy of the said
document purporting to be a partition
deed is on record and has been noticed by
the authorities below it is not clear
whether the alleged acquisition 2 of
rights under the said document was ever
reported to revenue authorities in terms
of Sections 148 and 149 of the Maharashtra

91
Land Revenue Code, 1966. It is also not
clear as to whether the revenue
authorities had upon receipt of such a
report taken any steps to acknowledge the
creation of the alleged rights in favour
of the legal representatives of the
deceased appellant. The orders under
challenge on the contrary suggest that
the ownership of the land had continued
in the name of the deceased in the revenue
records despite the alleged execution of
the partition deed. Confronted with this
position Ms. Indu Malhotra, learned
senior counsel appearing for the
appellants seeks a short adjournment to
take instruction and place on record
material to suggest that the execution of
the so-called partition deed and the
acquisition of the rights thereunder by
her clients was duly reported and
accepted in appropriate proceedings
envisaged under the land revenue code
mentioned above. Copies of the record of
rights in relation to land in question
with effect from 31.09.1970 till
02.10.1975 shall also be placed on
record. Needful shall be done within six
weeks.”

94. Pursuant to the same an additional affidavit by

son of Late Vithaldas has been filed on 09.03.2017.

Thereunder it is inter alia stated that on an

application to the concerned office, reply was

received to the effect that with regard to the field

Survey No.12 and 14 of village Babulgaon as well as

field Survey No.64 village Mangrul, that the record

92
from 1970 to 1975 is in a mutilated condition and the

mutation register for the period from 1964 to 1978 is

not traceable.

“For Village Mangrul, the crop statement
is not available for the period 1970-

1972, and for Village Babhulgaon crop
statement is not available for the
period 1970-1973 for Survey No.14, while
crop statement is not available for
Survey No.12 for the period 1971-1972.”

95. It is stated further that the name of the son is

recorded in the Crop Register for the period 1972 to

1975 as occupant. Certain copies of the Record of

Rights from the register of crop prepared under Rule

29 of the Maharashtra Land Revenue Record of Rights

and Registers (Preparation and Maintenance Rules)1971

have been produced. They show inter alia as follows:

Therein, in the year 1973-74 under the column

‘existing occupant’, as regards Survey No.14 is

concerned, for a total area of 35 acres and 12

guntas it is Vithaldas who is shown as the

occupant. Durga Devi is also shown as occupant

93
as against Sy.No.14 in respect of 14.29 H. Bela

Devi, the youngest daughter is also shown as

occupant. Both are shown as minor and their

guardian, the grandfather. The same is the

position in regard to the year 1974-1975. Still

further it is shown likewise for the year 1975-

1976. The same position is shown both before and

after the consolidation proceedings in regard to

Survey No.12. For the year 1972-1973 in regard

to 17 acres and 23 guntas.,Shankuntala Bai (the

eldest daughter) was shown under the head ‘Name

of the existing occupant’ along with Vithaldas

Jagannath S.O.. Even in the Crop Register 1973-

1974, the name of the occupant is shown as

Vithaldas Jagannath for minor Shakuntala Bai

Vithaldas. It is to be noted that going by the

date of birth of Shakuntala Bai as noted by the

Tribunal as on 03.11.1955, she became major on

03.11.1973, Still she is shown as a minor and her

father is shown as occupant on her behalf.

In regard to 17 acres and 23 guntas for 1974-

94
1975 under the name of existing occupant, the

following is noticed-

1)Vithaldas Jagannath,

2)Shakuntala Bai Vithaldas through the guardian
Jagannath.

Two features may be noted.

96. The first occupant is shown as the father. This

is despite the fact that on 03.11.1973 itself

Shakuntala Bai had even already become a major. For

the earlier year it has been noticed that the entry

was Vithaldas for Shakuntala Bai. For the year 1974-

1975, the next feature to be noticed is Shakuntala Bai

is to shown along with her father as an occupant.

However, she is so shown through her guardian who is

shown as her grandfather. Taking the matter forward

for the next year namely 1975-1976, the occupant is

shown as Shakuntala Bai Rama Prasad through guardian

Jagannath. It is to be noted that Shakuntala Bai had

much earlier become major. The name of Vithaldas which

was there in the earlier year is seen removed.

97. In the Record of Rights, produced under the law

relating to consolidation in Survey No.12, Shakuntala

95
Bai is shown as minor through her grandfather both

before and after the proceedings were conducted. In

this connection as noticed by the Tribunal crops

statements for the other years were not filed. They

were not produced in the High Court also. No evidence

has been tendered though it was open to adduce evidence

as is permitted under the Act.

98. I would think on a conspectus of the material, I

feel reinforced that the partition was indeed not only

unnatural but it was not intended to have effect.

THE EFFECT OF THE CROSS OBJECTION BEING ALLOWED IN THE
ABSENCE OF THE TWO ELDER DAUGHTERS TO WHOM THE PROPERTY
WAS ALLOTTED IN THE PARTITION.

99. It is undoubtedly true that the appeal before the

Tribunal was filed by Late Vithaldas, his wife, son and

youngest daughter. It is also true that there was no

occasion for the elder daughters to challenge the order

passed as the properties allotted to them in the

partition deed dated 31.1.1970 stood excluded. It is

in such an appeal that the Government filed a cross

objection. Undoubtedly, the cross objection was

maintainable both under the express provisions of

96
Section 33 of the Act as also under Order 41 Rule 22

CPC which was also made applicable under Section 33 of

the Act. In law it is true that if a cross objection

is maintained, the person affected by an order in the

cross objection must be on the party array. If he is

not on the party array, it is incumbent upon the

respondent in the appeal who seeks to maintain a cross

objection against a non-party to implead such person

as a party. This is a matter on which I need not dwell

further.

100. The question which would however arise is, as

is sought to be contended by the respondent-State the

effect of the elder daughters not challenging the order

of the Tribunal. The order of the Tribunal was

challenged by Vithaldas and his wife only by filing a

writ petition before the High Court. Appellants 3 and

4 in the appeal before the Tribunal were made

respondents in such writ petition. It is true that

elder daughters were also made respondents.

101. Shri Vithaldas and his wife did not prosecute

the writ petition also as representatives of the elder

97
daughters. At least the writ petition is not produced

to support such a case. It is necessary to notice that

the finding regarding the partition deed and gift deed

by the Tribunal impacted both Vithaldas and his wife

on the one hand and also the elders daughters on the

other hand [the latter as regards the partition deed].

The Ceiling Account of the family unit was determined

taking into consideration the 31 and odd acres allotted

to the elder daughters. Vithaldas would been affected

in two different capacities. One as head of the family

unit and the other as father of the elder daughters.

102. It is relevant to notice that under the Hindu

Minority and SectionGuardianship Act, 1956 Section 6 declares

who is to be the natural guardian of a Hindu minor. It

reads as under:

“6. Natural guardians of a Hindu minor.—
The natural guardian of a Hindu minor, in
respect of the minor’s person as well as
in respect of the minor’s property
(excluding his or her undivided interest
in joint family property), are—

(a) in the case of a boy or an unmarried
girl—the father, and after him, the
mother: provided that the custody of a
minor who has not completed the age of

98
five years shall ordinarily be with the
mother;

(b) in case of an illegitimate boy or an
illegitimate unmarried girl—the mother,
and after her, the father;

(c) in the case of a married girl—the
husband: Provided that no person shall be
entitled to act as the natural guardian
of a minor under the provisions of this
section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally
renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or
sanyasi). Explanation.—In this section,
the expression “father” and “mother” do
not include a step-father and a step-
mother.”
(Emphasis supplied)

103. A perusal of Section 6 of the Hindu Minority

and SectionGuardianship Act would show that in the case of

unmarried girl, the father and after the father the

mother would be the natural guardian. This is in

respect of both the person of the minor and the property

of the minor. When the writ petition was filed, the

eldest daughter was clearly major and married. Durga

Devi was also a major.

104. The State would contend the partition dated

31.1.1970 was a sham and Vithaldas continued to hold

99
the property. It is not unnatural that he would

challenge the inclusion of such property in the ceiling

account as property of the family unit on the basis

that he continued to be the holder. Allowing the cross

objection by the Tribunal if viewed in this perspective

did affect Vithaldas. He could indeed question the

inclusion of the lands allotted to his elder daughters

in the account of the family unit. Vithaldas could

support the partition deed but he could not challenge

the order of the Tribunal allowing the cross objection

on the ground that the cross objection was allowed

without giving an opportunity to his daughters.

Undoubtedly, Vithaldas was the first appellant before

the Tribunal. He along with other appellants therein

were heard by the Tribunal as parties before allowing

the cross objection in relation to the partition. The

ground that the cross objection was allowed without an

opportunity to his elder daughters was not available

to Vithaldas or his wife. Again, I would reiterate

that the writ petition has been filed only by Vithaldas

and his wife. Though the elder daughters were majors,

they have not challenged the order of the Tribunal.

100
Maybe it is true that they were respondents in the writ

petition filed by their parents. Even after the

learned Single Judge dismissed the writ petition,

upholding the order of the Tribunal, no appeal was

filed by the elder daughters.

105. If indeed the elder daughters had acquired

possession and rights under the partition deed in

respect of an extent of more than 31 and odd acres of

land in between themselves, it passes one’s

comprehension that they would not challenge the order

which purported to deprive them of their rights. This

conduct on the part of the parties would appear to lend

assurance to the case of the State that the partition

was not a genuine transaction but a sham and the

property continued with Vithaldas in which case it

would be property held by Vithaldas even on the

commencement date namely 2.10.1975 rendering it liable

to be included in the account of the family unit. He

accordingly challenged the order of the Tribunal along

with his wife who was separately aggrieved by the

inclusion of the property found gifted to her.

101

106. It is to be noted that a writ petition is not a

partition suit. In a partition suit, apart from the

plaintiff, the defendants also stand in the shoes of a

plaintiff. Vithaldas passed away even when the appeal

was pending in the High Court. Appeal was filed before

this Court originally as a special leave petition. In

the Special Leave Petition, it is shown Vithaldas(now

deceased) through LRs and the petitioners names are

shown. No doubt their position as respondents in the

High Court is also shown. The elder daughters were

petitioner No.1 and 2 in the special leave petition and

upon leave being granted, they are in the party array

as appellants 1 and 2. But they are before this Court

only as legal representatives of Vithaldas who

instituted the writ petition and appeal along with his

wife. Be it noted that one out of the two appellants

in the High Court, namely, Vithaldas passed away. His

wife has not pursued the matter before this Court and

she is a proforma respondent No.4 in this appeal. The

appeal is prosecuted by the present appellants in their

capacity as legal representatives of Vithaldas.

Contentions which were available to Vithaldas alone,

102
would therefore be available to them. In this Court,

I may refer to the judgment of this Court reported in

SectionJagdish Chander Chatterjee and Others v. Shri Sri

Kishan and another26, reads as follows:

“10. Under sub-clause (ii) of Rule 4 of
Order XXII, Civil Procedure Code any
person so made a party as a legal
representative of the deceased,
respondent was entitled to make any
defence appropriate to his character as
legal representative of the deceased-
respondent. In other words, the heirs and
the legal representatives could urge all
contentions which the deceased could have
urged except only those which were
personal to the deceased. Indeed this
does not prevent the legal
representatives from setting up also
their own independent title, in which
case there could be no objection to the
court impleading them not merely as the
legal representatives of the deceased but
also in their personal capacity avoiding
thereby a separate suit for a decision on
the independent title”.

(Emphasis supplied)

107. As has been noted by me, the contention that the

Tribunal should not have allowed the cross objection

26 (1972) 2 SCC 461

103
without the elder daughters on the party array was not

available to Vitahaldas. If that is so, his legal

representatives namely, the appellants cannot take

contentions which were not available to their

predecessor-in-interest.

108. It is true that this is a case where as regards

the elder daughters, they were not parties in the

appeal in which the cross-objection was filed.

109. Also, no doubt the elder daughters and others

were respondents in the Writ Petition and Letter Patent

Appeal. It may be true that a respondent and even a

person who is not a party can with leave prefer an

appeal. But when they have not challenged the order of

the Tribunal and even the judgment of the learned

Single Judge and as the Vithaldas had fully contested

the matter and in view of my finding that the properties

allotted to the elder daughters, are liable to be found

held by Vithaldas, I would not be inclined to

interfere, particularly, as I have noted above when the

perusal of the Special Leave Petition would reveal that

Vithaldas (now deceased) through the LRs-the

petitioners is shown in the cause title. It must be

104
remembered that the petitioners upon the passing away

of Vithaldas during the pendency of the Latter Patent

Appeal were recorded as his legal representatives.

110. I would also, at any rate, in this regard, in

this case invoke the principles laid down in

Taherakhatoon (D) By Lrs. v. Salambin Mohammad27 and

refuse to interfere.

111. I would think, therefore, the appeal must fail

and it stands dismissed.

.................J.

(K.M. JOSEPH)

NEW DELHI,
AUGUST 29, 2019.

27 1999(2) SCC 635

105
Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6006 OF 2009

VITHALDAS JAGANNATH KHATRI (D) THROUGH
SHAKUNTALA ALIAS SUSHMA ORS. ...Appellants

Vs.

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

O R D E R

In view of difference of opinions and the

distinguishing judgments (Hon’ble Sanjay Kishan Kaul, J.

allowed the appeal and Hon’ble K.M.Joseph, J. dismissed the

appeal), the matter be placed before Hon’ble the Chief

Justice of India for referring the matter to a Larger Bench.

......................J.

[SANJAY KISHAN KAUL]

......................J.

[K.M.JOSEPH]

New Delhi;

August 29, 2019.

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